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HomeMy WebLinkAbout2.0 Uptown Newport PA2011-134Memorandum CITY OF NEWPORT BEACH COMMUNITY DEVELOPMENT DEPARTMENT 3300 NEWPORT BOULEVARD, BLDG. C NEWPORT BEACH, CA 92658 -8915 (949) 644- 3210 To: Planning Commission (fw & From: James Campbell, Principal Planner Date: December 20, 2012 Re: Uptown Newport Planned Community (PA2011 -134) During the public hearing conducted on December 6, 2012, staff noted several items that require clarification or response. 1. Traffic Phasing Ordinance (TPO) Staff's response to Commissioner Hillgren's inquiry about a condition related to the need to perform a TPO analysis for Phase 2 was inaccurate. The TPO requires traffic analysis for projects that increase daily traffic by more than 300 trips and the analysis only considers projects within a 60 month horizon. This is the reason that the analysis was performed for Phase 1 and not Phase 2. No condition or Mitigation Measure was included as the Municipal Code mandates the completion of traffic study prior to Phase 2. 2. Residential Density and Traffic Neutrality Comments were made questioning the overall density, project traffic generation, and whether the project should be "traffic neutral" in the light of a projected increase in average daily trips. General Plan Policy LU 6.15.5 provides that residential units may be developed on mixed -use designated sites in the Airport Area only as the replacement of underlying units ( "replacement "). The policy also provides that mixed -use development that replaces existing industrial uses not cumulatively generate more peak hour trips than the underlying permitted non - residential uses. These two provisions have led some to suggest that the project cannot increase traffic beyond existing uses but the General Plan policy also allows an additional 550 units ( "additive units') to be developed as infill development. These additive units would generate traffic above existing uses and there were accounted for in the traffic and environmental analysis. 1 Uptown Newport Planned Community (PA2011 -134) December 20, 2012 Page 2 of 3 State Law provides an opportunity to increase the density beyond General Plan or zoning limits as an incentive to create affordable housing and the City must allow it. In summary, through the potential allocation of additive units and density bonus, peak hour trip can exceed that of existing uses and no inconsistency with General Plan Policy LU 6.15.5 is created. In the case of the proposed project, all three types of units are being sought. The maximum number of residential units consistent with LU 6.15.5 was determined for the proposed project with the Council approval of the Integrated Conceptual Development Plan (ICDP) in 2010. Peak hour traffic from the existing office and industrial uses was used to establish the maximum number of replacement units (632 units). The City Council allocated 290 of the 550 available additive units to the project site through the ICDP process. The net result is the establishment of the maximum number of units allowed by the General Plan (922 units). The maximum number of units has also been referred to as "base units" for the calculation of density bonus. The applicant is seeking a 35% bonus density increase (922 *35% =322 units) resulting in a total of 1,244 units. The impact of traffic from all 1,244 units has been evaluated in the EIR. 3. Maximum Density A comment letter indicated that the proposed tract map does not provide sufficient developable area to support the proposed density. General Plan Policy LU6.15.7 establishes a minimum density of 30 units and a maximum of 50 dwelling units per net acre. Net acreage is defined by the policy and it excludes existing and new rights -of -way, public pedestrian ways, and neighborhood parks. The revised tract map provides 4.54 acres of public right -of -way (streets and sidewalks), 2.05 acres of park land, and 18.46 acres of residential land. The residential area does include a number of small parcels that will be developed for landscaping and the proposed paseos (Lots N, P, S, Z and AA) that will be accessible to the public. Although the proposed paseos are publically accessible during daylight hours, they are not the public pedestrian ways to which the policy refers. The public pedestrian ways that are referenced are the proposed pedestrian ways specifically identified in Figure LU23 of the General Plan and none of them are located on the project site. 4. Missing PRIES Companies DER Comment Letter Speaker on behalf of PRIES Companies indicated that their comment letter was not included. The October 24, 2012, letter from PRIES Companies commenting on the DER is included in the Final EIR starting on Page 2 -107. 2 Uptown Newport Planned Community (PA2011 -134) December 20, 2012 Page 3 of 3 5. Comment Letters Staff attached 7 comment letters to the December 6, 2012, staff report. Two additional comments letters were submitted after the December 6th meeting (attached). Staff has reviewed the letters and believes that all of the issues raised have been evaluated adequately in the Final EIR, staff report, this memorandum or during the discussion at the public hearing. Additionally, staff believes that the information does not constitute significant new information that would necessitate recirculation of the Draft EIR for further public comment pursuant to CEQA Guidelines Section 15088.5. None of the new material indicates that the project will result in a significant new environmental impact not previously disclosed in the Draft EIR. Additionally, none of this material indicates that there would be a substantial increase in the severity of a previously identified environmental impact that will not be mitigated, or that there would be any of the circumstances requiring recirculation described in Section 15088.5. Staff received comments from Commissioner Tucker regarding the proposed conditions of approval for the Tentative Tract Map. The draft resolution (attached) has been updated to include Commissioner Tucker's suggested changes to the conditions of approval, an additional finding regarding recirculation of the Draft EIR discussed at the prior meeting, and correction scriveners' errors (PC1). Based upon comments received from Commissioner Tucker regarding the draft Development Agreement (DA) that provide enhanced clarity, staff has revised the DA (PC2). Commissioner Tucker has also provided comments on the Planned Community documents (PC 3). Most of the comments improve clarity, but others will require additional dialog by the Commission. Finally, Commissioner Tucker provided comments on the Affordable Housing Implementation Plan (AHIP) in regards to potential clustering of units and the phasing of construction (PC4). The AHIP provides for clustering of affordable units consistent with the Municipal Code (Section IV) where the City would consider the design and location of affordable units when at the site development plan stage for the future construction of buildings to ensure that the affordable units are designed, located, and integrated appropriately. Staff has prepared revisions to the phasing of affordable housing construction to ensure that each phase includes its pro -rata share of affordable housing and that it is completed before or concurrently with market -rate construction. The revised AHIP is attached as Attachment PC5. Attachments: PC1 Revised Draft Resolution PC2 Revised DA PC3 Commissioner Tucker comments on Planned Community Documents PC4 Commissioner Tucker comments on AHIP PC5 Revised AHIP PC6 Correspondence 3 11 Attachment No. PC 1 Revised Draft Resolution 0 RESOLUTION NO. A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH RECOMMENDING CERTIFICATION OF FINAL ENVIRONMENTAL IMPACT REPORT NO. ER2012 -001, ADOPTION OF STATEMENT OF OVERRIDING CONSIDERATIONS, AND APPROVAL OF PLANNED COMMUNITY DEVELOPMENT PLAN AMENDMENT NO. PD2011- 003, PLANNED COMMUNITY DEVELOPMENT PLAN ADOPTION NO. PC2012 -001, TENATIVE TRACT MAP NO. NT2012 -002, AFFORDABLE HOUSING IMPLEMENTATION PLAN NO. AH2012 -001, TRAFFIC STUDY NO. TS2012 -005, AND DEVELOPMENT AGREEMENT NO. DA2012 -003 FOR THE 25.05 ACRE PLANNED COMMUNITY KNOWN AS UPTOWN NEWPORT LOCATED AT 4311 -4321 JAMBOREE ROAD (PA2011 -134) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Uptown Newport LP ( "Uptown Newport' or "Applicant") with respect to a 25.05 -acre property generally located on the north side of Jamboree Road between Birch Street and the intersection of Von Karman Avenue and MacArthur Boulevard, legally described on Exhibit A, which is attached hereto and incorporated herein by reference, (the "Property ") requesting approval for the development of up to 1,244 residential dwelling units, 11,500 square feet of retail commercial uses and 2.05 acres of parklands (the "Project'). The following approvals are requested or required in order to implement the project as proposed: a. Planned Community Development Plan Amendment No. PD2011 -003: An amendment to Planned Community Development Plan #15 (Koll Center Planned Community) to remove the subject property from the Koll Center Planned Community, pursuant to Chapter 20.66 (Amendments) of the Municipal Code. b. Planned Community Development Plan Adoption No. PC2012 -001: A Planned Community Development Plan (PCDP) adoption to establish the allowable land uses, general development regulations, and implementation and administrative procedures, which would serve as the zoning document for the construction of up to 1,244 residential units, 11,500 square feet of retail commercial, and 2.05 acres of park space to be built in two separate phases on a 25.05 -acre site, pursuant to Chapter 20.56 of the Municipal Code. The PCDP has three (3) components: 1) Land Uses, Development Standards & Procedures; 2) Phasing Plan; and 3) Design Guidelines. C. Tentative Tract Map No. NT2012 -002: A tentative tract map to establish lots for residential development purposes pursuant to Title 19 of the Municipal Code. d. Traffic Study No. TS2012 -005: A traffic study pursuant to Chapter 15.40 (Traffic Phasing Ordinance) of the Municipal Code. N Planning Commission Resolution No. Page 2 of 103 e. Affordable Housing Implementation Plan No. AH2012 -001: A program specifying how the proposed project would meet the City's affordable housing requirements, pursuant to Chapter 19.53 (Inclusionary Housing) and Chapter 20.32 (Density Bonus) of the Municipal Code. f. Development Agreement No. DA2012 -003: A Development Agreement between the applicant and the City of Newport Beach describing development rights and public benefits, pursuant to Section 15.45.020.A.2.a of the Municipal Code and General Plan Land Use Policy LU6.15.12. 2. The Property has a General Plan designation of Mixed -Use District Horizontal -2 (MU- 1­12), and the Property is located within the Airport Business Area, for which the Airport Business Area Integrated Conceptual Development Plan ( "ICDP ") has been adopted. The ICDP allocates a maximum of 1,244 residential units and up to 11,500 square feet of retail to be developed on the Property. 3. The Property is currently located within the City of Newport Beach ( "City ") Koll Center Newport Planned Community and is designated as Industrial Site 1. 4. On October 4, 2012, the Planning Commission held a study session for the project in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, on the DEIR and Project. 5. Public hearings were held on December 6 and December 20, 2012, in the City Hall Council Chambers, at 3300 Newport Boulevard, Newport Beach, California. A notice of the time, place and purpose of the aforesaid meeting was provided in accordance with CEQA and the Newport Beach Municipal Code ( "NBMC "). The DEIR, draft Responses to Comments, Revisions to DEIR, Mitigation Monitoring and Reporting Program, staff report, and evidence, both written and oral, were presented to and considered by the Planning Commission at the scheduled hearing. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. Pursuant to the California Environmental Quality Act, Public Resources Code Section 21000, et seq. ( "CEQA "), the CEQA Guidelines (14 Cal. Code of Regulations, Sections 15000 at seq.), and City Council Policy K -3, the Project could have a significant effect on the environment, and thus warranted the preparation of an Environmental Impact Report ( "EIR "). 2. On December 8, 2011, the City, as lead agency under CEQA, prepared a Notice of Preparation ( "NOP ") of the EIR and mailed that NOP to public agencies, organizations and persons likely to be interested in the potential impacts of the proposed Project. 3. On December 15, 2011, the City held a public scoping meeting to present the proposed Project and to solicit input from interested individuals regarding environmental issues that should be addressed in the EIR. I Planning Commission Resolution No. Page 3 of 103 4. The City thereafter caused to be prepared a Draft Environmental Impact Report (No. ER2012 -001, SCH No. 2010051094) ( "DEIR ") in compliance with CEQA, the State CEQA Guidelines and City Council Policy K -3, which, taking into account the comments it received on the NOP, described the Project and discussed the environmental impacts resulting there from. 5. The DEIR was circulated for a 45 -day comment period beginning on September 10, 2012 and ending October 24, 2012. 6. The FEIR, consisting of the DEIR, Comments and Responses to Comments, Revisions to DEIR, and Mitigation Monitoring and Report Program attached as Exhibit B, was considered by the Planning Commission in its review of the proposed Project. 7. The Planning Commission has reviewed the revisions to the DEIR and determined that none of the new material contained in Section 3 of Final Draft Environmental Impact Report (No. ER2012 -001. SCH No. 2010051094) ( "FEIR ") constitutes the type of significant new information that requires recirculation of the DEIR for further public comment under CEQA Guidelines Section 15088.5. None of the new material indicates that the proiect will result in a significant new environmental impact not Previously disclosed in the DEIR. Additionally, none of this material indicates that there would be a substantial increase in the severity of a previously identified environmental impact that will not be mitigated, or that there would be any of the other circumstances requiring recirculation described in Section 15088.5. 8. On the basis of the entire environmental review record, the proposed Project will have a less than significant impact upon the environment with the incorporation of mitigation measures, with the exception of the following significant and unavoidable impacts: A. Air Quality — Short term construction - related emission for Phases 1 and 2 of the project B. Land Use - A determination of inconsistency with the John Wayne Airport Environs Land Use Plan (AELUP) by the Airport Land Use Commission (ALUC) C. Noise - Construction - related noise impacts for Phase 1 and Phase 2 of the project 9. The mitigation measures identified in the DEIR are feasible and reduce potential environmental impacts to a less than significant level, with the exception of those impacts identified above. The mitigation measures would be applied to the Project through the Mitigation, Monitoring and Reporting Program. 10. The record supports a Statement of Overriding Considerations pursuant to CEQA in that the Project includes public benefits that outweigh the air quality, land use and noise impacts of the proposed Project. 9 Planning Commission Resolution No. Page 4 of 103 11. The Planning Commission finds that judicial challenges to the City's CEQA determinations and approvals of land use projects are costly and time consuming. In addition, project opponents often seek an award of attorneys' fees in such challenges. As project applicants are the primary beneficiaries of such approvals, it is appropriate that such applicants should bear the expense of defending against any such judicial challenge, and bear the responsibility for any costs, attorneys' fees and damages which may be awarded to a successful challenger. SECTION 3. FINDINGS. 1. The proposed project is consistent with the goals and policies of the Newport Beach General Plan and Integrated Conceptual Development Plan. The Planning Commission concurs with the conclusion of the consistency analysis of the proposed project with these goals and policies provided in the DEIR. 2. Findings of Fact and Statement of Overriding Considerations for the Final Environmental Impact Report are provided in Exhibit C. 3. Findings and facts in support of such findings for the approval of the Tentative Tract Map in accordance with NBMC Section 19.12.070 are provided in Exhibit F. 4. Findings and facts in support of such findings for the approval of the Traffic Study in accordance with NBMC Section 15.40.030 are provided in Exhibit I. 5. The proposed affordable housing implementation plan (AHIP) is consistent with the intend to implement affordable housing goals within the City pursuant to Government Code Section 65915 -65918 ( "State Bonus Density Law "), Title 19, Chapter 19.54 (Inclusionary Code), and Title 20, Chapter 20.32 (Density Bonus Code) of the Newport Beach Municipal Code. The State Density Bonus Law and the City's Density Bonus Code provide for an increase in the number of units of up to thirty-five percent (35 %) above the maximum number of units allowed by the General Plan provided the Project constructs a minimum number of affordable units depending upon what income category is served. At the maximum density bonus of 35 %, the Project could accommodate up to 322 additional units above the 922 base units allowed by the General Plan for a total of 1,244 total units. 6. In accordance with NBMC Section 15.45.020.A.2.a and c, a development agreement is required pursuant to General Plan Policy LU 6.15.12 as the project: 1) requires a zoning code amendment that includes the development of more than fifty (50) residential units and 2) includes new non - residential development in Statistical Area L4 (Airport Area). The Development Agreement includes all the mandatory elements for consideration and public benefits that are appropriate to support conveying the vested development rights consistent with the General Plan and Government Code Section 65867.5. I Planning Commission Resolution No. Page 5 of 103 SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Planning Commission of the City of Newport Beach determines that, based on all information, both oral and written, provided to date, that there has not been any no new significant information, data, or changes to the Project which either result in the creation of a new significant environmental impact, or the need to adopt a new mitigation measure, or a substantial increase in the severity of an environmental impact, or in a finding that the draft EIR was so fundamentally and basically inadequate and conclusory in nature that meaningful public review and comment were precluded. 2. The Planning Commission of the City of Newport Beach hereby recommends to the City Council certification of the Uptown Newport Final Environmental Impact Report No. ER2012 -001 (SCH No. 2010051094), attached hereto and incorporated herein by reference as Exhibit B, based upon the draft Findings of Fact and Statement of Overriding Considerations including Project benefits that outweigh the air quality, land use and noise impacts of the proposed Project attached hereto as Exhibit C and incorporated herein by reference. 3. The Planning Commission of the City of Newport Beach hereby recommends to the City Council approval and adoption of: a. Planned Community Development Plan Amendment No. PD2011 -003, attached hereto as Exhibit D and incorporated herein by reference; b. Planned Community Development Plan Adoption No. PC2012 -001, consisting of three documents: 1) Land Uses, Development Standards & Procedures, 2) Phasing Plan, and 3) Design Guidelines, attached hereto as Exhibit E and incorporated herein by reference; C. Tentative Tract Map No. NT2012 -002, attached hereto as Exhibit H and incorporated herein by reference, and subject to the conditions set forth in Exhibit G, which is attached hereto and incorporated herein by reference; d. Traffic Study No. TS2012 -005, attached hereto as Exhibit J and incorporated herein by reference. e. Affordable Housing Implementation Plan No. AH2O12 -001, attached hereto as Exhibit K and incorporated herein by reference; and f. Development Agreement No. DA2012 -003, attached hereto as Exhibit L and incorporated herein by reference; 10 Planning Commission Resolution No. Page 6 of 103 PASSED, APPROVED AND ADOPTED THIS 20TH DAY OF DECEMBER, 2012. AYES: NOES: ABSTAIN: ABSENT: BY: Michael Toerge, Chairman w Fred Ameri, Secretary i1 Planning Commission Resolution No. Page 7 of 103 EXHIBIT A LEGAL DESCRIPTION Being a subdivision of Lots 1 and 2 of Tract No. 7953, in the City of Newport Beach, County of Orange, State of California, as shown on a map recorded in Book 310, Pages 7 to 11 inclusive, of Miscellaneous Maps, recorded of said County. 12 Planning Commission Resolution No. Page 8 of 103 EXHIBIT B UPTOWN NEWPORT FINAL ENVIRONMENTAL IMPACT REPORT ER2012 -001 (SCH No. 2010051094) Consists of: 1. Volume I: Draft Environmental Impact Report (EIR) a. and Appendix A dated September 2012 2. Volume II: Appendices B through H dated September 2012 3. Volume III: Appendices I though O dated September 2012 4. Final EIR dated November 29, 2012 a. Responses to Comments b. Revisions to the Draft EIR 5. Mitigation Monitoring and Reporting Program dated November 29, 2012 The Final Environmental Impact Report is available for review at the Planning Division of Community Development Department or at http: / /newportbeachca.gov /index.aspx ?paqe =2029 13 Planning Commission Resolution No. Page 9 of 103 EXHIBIT C A. FINDINGS AND FACTS IN SUPPORT OF FINDINGS FOR THE UPTOWN NEWPORT PROJECT FINAL ENVIRONMENTAL IMPACT REPORTSTATE CLEARINGHOUSE NO. 2010051094 1. INTRODUCTION The California Environmental Quality Act, Public Resources Code Section 21081, and the State CEQA Guidelines, 14 California Code of Regulations, Section 15091 (collectively, CEQA) require that a public agency consider the environmental impacts of a project before a project is approved and make specific findings. The State CEQA Guidelines Section 15091 provides: (a) No public agency shall approve or carry out a project for which an EIR has been certified which identifies one or more significant environmental effects of the project unless the public agency makes one or more written findings for each of those significant effects, accompanied by a brief explanation of the rationale for each finding. The possible findings are: 1. Changes or alterations have been required in, or incorporated into, the project which avoid or substantially lessen the significant environmental effect as identified in the EIR. 2. Such changes or alterations are within the responsibility and jurisdiction of another public agency and not the agency making the finding. Such changes have been adopted by such other agency or can or should be adopted by such other agency. 3. Specific economic, legal, social, technological, or other considerations, including provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or project alternatives identified in the final EIR. (b) The findings required by subdivision (a) shall be supported by substantial evidence in the record. (c) The finding in subdivision (a)(2) shall not be made if the agency making the finding has concurrent jurisdiction with another agency to deal with identified feasible mitigation measures or alternatives. The finding in subsection (a)(3) shall describe the specific reasons for rejecting identified mitigation measures and project alternatives. (d) When making the findings required in subdivision (a)(1), the agency shall also adopt a program for reporting on or monitoring the changes which it has either required in the project or made a condition of approval to avoid or substantially lessen significant environmental effects. These measures must be fully enforceable through permit conditions, agreements, or other measures. PR' Planning Commission Resolution No. Page 10 of 103 (e) The public agency shall specify the location and custodian of the documents or other materials which constitute the record of the proceedings upon which its decision is based. (f) A statement made pursuant to Section 15093 does not substitute for the findings required by this section. State CEQA Guidelines Section 15093 further provides: (a) CEQA requires the decision - making agency to balance, as applicable, the economic, legal, social, technological, or other benefits of a proposed project against its unavoidable environmental risks when determining whether to approve the project. If the specific economic, legal, social, technological, or other benefits of a proposal project outweigh the unavoidable adverse environmental effects, the adverse environmental effects may be considered "acceptable." (b) Where the lead agency approves a project which will result in the occurrence of significant effects which are identified in the final EIR but are not avoided or substantially lessened, the agency shall state in writing the specific reasons to support its action based on the final EIR and /or other information in the record. This statement of overriding considerations shall be supported by substantial evidence in the record. (c) If an agency makes a statement of overriding considerations, the statement should be included in the record of the project approval and should be mentioned in the notice of determination. This statement does not substitute for, and shall be in addition to, findings required pursuant to Section 15091. Having received, reviewed, and considered the Draft Environmental Impact Report (Draft EIR) and the Final Environmental Impact Report (Final EIR) for the Uptown Newport project, SCH No. 2010051094 (collectively, the EIR), as well as all other information in the record of proceedings on this matter, the following Findings and Facts in Support of Findings (Findings) and Statement of Overriding Considerations (SOC) are hereby adopted by the City of Newport Beach (City) in its capacity as the CEQA Lead Agency. These Findings set forth the environmental basis for the discretionary actions to be undertaken by the City for the development of the project. These actions include the approval of the following for Uptown Newport: • Environmental Impact Report No. ER2012 -001 (SCH #2010051094). • Planned Community Development Plan Amendment No. PD2011 -003 • Planned Community Development Plan Adoption No. PC2012 -001. The PCDP has three components: 1) Land Uses, Development Standards & Procedures; 2) Phasing Plan; and 3) Design Guidelines. 15 Planning Commission Resolution No. Page 11 of 103 • Tentative Tract Map No. NT2012 -002. A tentative tract map to establish lots for residential development purposes pursuant to Title 19 of the Municipal Code. • Traffic Study No. TS2012 -005. A traffic study pursuant to Chapter 15.40 (Traffic Phasing Ordinance) of the Municipal Code. • Affordable Housing Implementation Plan No. AH2012 -001. • Development Agreement No. DA2012 -003. These actions are collectively referred to herein as the project. A. Document Format These Findings have been organized into the following sections: (1) Section 1 provides an introduction to these Findings. (2) Section 2 provides a summary of the project, overview of the discretionary actions required for approval of the project, and a statement of the project's objectives. (3) Section 3 provides a summary of previous environmental reviews related to the project area that took place prior to the environmental review done specifically for the project, and a summary of public participation in the environmental review for the project. (4) Section 4 sets forth findings regarding the environmental impacts that were determined to be —as a result of the Initial Study, Notice of Preparation (NOP), and consideration of comments received during the NOP comment period — either not relevant to the project or clearly not at levels that were deemed significant for consideration at the project- specific level. (5) Section 5 sets forth findings regarding significant or potentially significant environmental impacts identified in the EIR that the City has determined are either not significant or can feasibly be mitigated to a less than significant level through the imposition of Project Design Features, standard conditions, and /or mitigation measures. In order to ensure compliance and implementation, all of these measures will be included in the Mitigation Monitoring and Reporting Program (MMRP) for the project and adopted as conditions of the project by the Lead Agency. Where potentially significant impacts can be reduced to less than significant levels through adherence to Project Design Features and standard conditions, these findings specify how those impacts were reduced to an acceptable level. Section 5 also includes findings regarding those significant or potentially significant environmental impacts identified in the EIR that will or may result from the project and which the City has determined cannot feasibly be mitigated to a less than significant level. 10 Planning Commission Resolution No. Page 12 of 103 (6) Section 6 sets forth findings regarding alternatives to the proposed project. B. Custodian and Location of Records The documents and other materials that constitute the administrative record for the City's actions related to the project are at the City of Newport Beach Community Development Department, 3300 Newport Boulevard, Newport Beach, California 92658. The City of Newport Beach is the custodian of the Administrative Record for the project. 2. PROJECT SUMMARY A. Project Location The 25.05 -acre project site is within the Airport Area of the City of Newport Beach, County of Orange, California. It is situated approximately 0.6 mile southeast of John Wayne Airport and occupies Assessor's Parcel Nos. 445 - 131 -02 and 445 - 131 -03. It is on the west side of Jamboree Road between Birch Street and the intersection of Von Karman Avenue and MacArthur Boulevard. The two existing onsite industrial buildings are at 4311 and 4321 Jamboree Road. Regional access to the site is from State Route 73 (SR -73) via Jamboree Road. Vehicular access to the site is from Jamboree Road, Birch Street, and Von Karman Avenue. MacArthur Boulevard and Von Karman Avenue pass west of the site, and Birch Street passes to the north. B. Project Description Proposed Site Plan and Land Use At buildout, Uptown Newport is intended to be a multifamily residential community with neighborhood - serving retail uses. The project site is within the Airport Business Area, for which the Airport Business Area Integrated Conceptual Development Plan (ICDP) has been implemented (General Plan Land Use Policy LU 6.15.11). Consistent with the ICDP and allocated residential units and commercial square footage, the site plan includes up to 1,244 residential units, 11,500 square feet of retail, and 2 acres of planned park area. The land use summary by phase is summarized in Table 1, Uptown Newport Land Use Summary. 17 Planning Commission Resolution No. Page 13 of 103 Table 1 Uptown Newport Land Use Summary Housing A variety of housing developments are anticipated. Residential product types would be for sale and rent with a mix of apartments, townhouses, and condominiums. Residential buildings may include low -rise row - houses and 4- and 5 -story apartments or condominiums featuring a range of floor plan sizes. Mid -rise to high -rise buildings are also envisioned. High rise buildings would not exceed 150 feet in height. Live -work units would also be a permitted use. Of the total 1,244 residential units, up to 184 units would be set aside for affordable housing. Commercial A retail component would provide neighborhood - serving retail and services. Permitted uses would include but not be limited to restaurants and retail uses such as bakeries, clothing /boutique shops, jewelry, and convenience stores. Business, medical, dental, and professional offices would be permitted uses as well as personal service uses such as dry cleaners, hair salons, optometry, and postal services. The permitted and conditional uses for Uptown Newport are detailed in the Land Uses, Development Standards and Procedures section of the Planned Community Development Plan (PC Development Plan). Parks The two 1 -acre minimum park areas would be principal focal points for the development. The parks would be privately maintained but publicly accessible. In addition to the neighborhood parks, public open space areas, private open space area, and ancillary amenities would be provided to serve residents and visitors. Circulation The development would be accessed from two intersections at Jamboree Road and one access from Birch Street. An emergency access would be provided to Von Karman Avenue via Koll Center Newport office park through an existing access drive. An internal pedestrian and open space network is envisioned to connect plazas, courtyards, parks, paseos, and AN Phase 1 Phase 2 Total Number of Units 680 564 1,244 Developable Area (ac) g,65 10.02 18.67 Park Area (ac) 1.03 1.02 2.05 Retail (sf) 11,500 0 11,500 Right of Way Area (ac) 2.61 1.72 4.33 Total Area (ac) 12.29 12.76 25.05 Housing A variety of housing developments are anticipated. Residential product types would be for sale and rent with a mix of apartments, townhouses, and condominiums. Residential buildings may include low -rise row - houses and 4- and 5 -story apartments or condominiums featuring a range of floor plan sizes. Mid -rise to high -rise buildings are also envisioned. High rise buildings would not exceed 150 feet in height. Live -work units would also be a permitted use. Of the total 1,244 residential units, up to 184 units would be set aside for affordable housing. Commercial A retail component would provide neighborhood - serving retail and services. Permitted uses would include but not be limited to restaurants and retail uses such as bakeries, clothing /boutique shops, jewelry, and convenience stores. Business, medical, dental, and professional offices would be permitted uses as well as personal service uses such as dry cleaners, hair salons, optometry, and postal services. The permitted and conditional uses for Uptown Newport are detailed in the Land Uses, Development Standards and Procedures section of the Planned Community Development Plan (PC Development Plan). Parks The two 1 -acre minimum park areas would be principal focal points for the development. The parks would be privately maintained but publicly accessible. In addition to the neighborhood parks, public open space areas, private open space area, and ancillary amenities would be provided to serve residents and visitors. Circulation The development would be accessed from two intersections at Jamboree Road and one access from Birch Street. An emergency access would be provided to Von Karman Avenue via Koll Center Newport office park through an existing access drive. An internal pedestrian and open space network is envisioned to connect plazas, courtyards, parks, paseos, and AN Planning Commission Resolution No. Page 14 of 103 retail uses. Minimum five - foot -wide sidewalks would be provided on both sides of internal streets. Operations At buildout, Uptown Newport is projected to house approximately 2,724 residents and employ approximately 26 people in the retail component of the project. The hours of the retail and office uses would be typical of neighborhood - serving uses and would be governed by the PC Development Plan. As envisioned, the project could also host a variety of special events and temporary uses throughout the year, including street fairs, farmers' markets, parades, trade shows, car shows, pageants, community concerts, outdoor displays, and recreation /entertainment events, subject to an applicable Special Event Permit issued by the City. General Phasing The project would be developed in two primary phases. The first phase of the project is projected to commence in 2013 and be completed by 2018. Timing for Phase 2 would be contingent on the existing lease of the TowerJazz building, which is currently set to expire in March 2017, but could be extended to as late as March 2027. The analysis in the Draft EIR conservatively assumed that Phase 2 could commence as early as spring 2017 with buildout through 2021. The operation of the TowerJazz facility, an existing semiconductor manufacturing facility, is expected to continue as an interim use after the development of Phase 1. The Draft EIR therefore addressed the potential impacts of the Phase 1 development (an interim condition with 680 residential units and 11,500 square feet of commercial uses) operating adjacent to the TowerJazz facility. Similarly, an SCE substation at the northwest corner of Fairchild Road and Jamboree Road would remain after Phase 1 development and be eliminated during Phase 2 development. C. Discretionary Actions Implementation of the portion of the project within the City of Newport Beach will require several actions by the City, including • Environmental Impact Report No. ER2012 -001 (SCH #2010051094). An Environmental Impact Report (EIR) to evaluate the environmental impacts resulting from the proposed project, in accordance with the California Environmental Quality Act of 1970 (CEQA), as amended (Public Resources Code Sections 21000 et seq.), and the State CEQA Guidelines for Implementation of CEQA (California Code of Regulations, Title 14, Sections 15000 et seq.). • Planned Community Development Plan Amendment No. PD2011 -003. An amendment to Planned Community Development Plan #15 (Koll Center Newport Planned Community) to remove the subject property from the Koll Center Newport 19 Planning Commission Resolution No. Page 15 of 103 Planned Community, pursuant to Chapter 20.66 (Amendments) of the Municipal Code. • Planned Community Development Plan Adoption No. PC2012 -001. A Planned Community Development Plan (PCDP) adoption to establish the allowable land uses, general development regulations, and implementation and administrative procedures, which would serve as the zoning document for the construction of up to 1,244 residential units, 11,500 square feet of retail commercial, and 2.05 acres of park space, pursuant to Chapter 20.56 of the Municipal Code. The PCDP has three (3) components: 1) Land Uses, Development Standards & Procedures; 2) Phasing Plan; and 3) Design Guidelines. • Tentative Tract Map No. NT2012 -002. A tentative tract map to establish lots for residential development purposes pursuant to Title 19 of the Municipal Code. • Traffic Study No. TS2012 -005. A traffic study pursuant to Chapter 15.40 (Traffic Phasing Ordinance) of the Municipal Code. • Affordable Housing Implementation Plan No. AH2012 -001. A program specifying how the proposed project would meet the City's affordable housing requirements, pursuant to Chapter 19.53 (Inclusionary Housing) and Chapter 20.32 (Density Bonus) of the Municipal Code. • Development Agreement No. DA2012 -003. A Development Agreement between the applicant and the City of Newport Beach describing development rights and public benefits, pursuant to Section 15.45.020.A.2.a & c of the Municipal Code and General Plan Land Use Policy LU6.15.12. The Final EIR would also provide environmental information to responsible agencies, trustee agencies, and other public agencies that may be required to grant approvals and permits or coordinate with the City of Newport Beach as a part of project implementation. These agencies include, but are not limited to: • Airport Land Use Commission of Orange County (ALUC). The project is within the boundaries of the Airport Environs Land Use Plan (AELUP). The overseeing agency, ALUC, must review the proposed project and determine its consistency with the AELUP. The ALUC considered the project at its October 18, 2012, public hearing and voted to find the project inconsistent with the Commission's AELUP. Approval of the project would require the Newport Beach City Council to override this determination with a two- thirds vote. • Irvine Ranch Water District (IRWD). Approval of the Water Supply Assessment (WSA) for the proposed project is needed from IRWD at the time of project approval by the City. • Regional Water Quality Control Board ( RWQCB). The Santa Ana RWQCB would approve the project's compliance with the National Pollution Discharge M Planning Commission Resolution No. Page 16 of 103 Elimination System (NPDES) Statewide General Construction Activity permit (2009- 0009 -DWQ) and Municipal Separate Stormwater Sewer System (MS4) permit. In addition, the RWQCB is the agency with lead oversight of the project site's remediation and is responsible for clearing the site for residential development. • South Coast Air Quality Management District ( SCAQMD). The project would require permitting by SCAQMD for Rules 201 (permit to construct), 402 (nuisance odors), 403 (fugitive dust), 1113 (architectural coatings), 1403 (asbestos emissions from demolition), and 1186 (street sweeping). D. Statement of Project Objectives The statement of objectives sought by the project and set forth in the Final EIR is provided as follows: 1. Implement the goals and policies that the Newport Beach General Plan has established for the Airport Area and the Integrated Conceptual Plan Development Plan. 2. Develop a mixed -use residential village characterized by a diversity of building and housing types that is consistent with the prescribed minimum density of 30 dwelling units and maximum of 50 dwelling units per net acre average over the 25.05 acre project site. 3. Develop up to 11,500 square feet of retail commercial uses to serve local residents, businesses and visitors. 4. Provide housing in close proximity to jobs and supporting services, with pedestrian - oriented amenities that facilitate walking and enhance livability. 5. Integrate neighborhood parks inter - connected by pedestrian walkways to encourage a sense of community. 6. Develop an attractive, viable project that yields a reasonable return on investment. 7. Provides for the phased transition from existing industrial and office uses to a mixed -use residential village. 8. Provide beneficial site and improvements including implementing a Water Quality Management Plan. 3. ENVIRONMENTAL REVIEW AND PUBLIC PARTICIPATION The Final EIR includes the Draft Environmental Impact Report (Draft EIR) dated September 10, 2012, written comments on the Draft EIR that were received during the 45 -day public review period, and written responses to those comments and clarifications /changes to the 21 Planning Commission Resolution No. Page 17 of 103 EIR. In conformance with CEQA and the State CEQA Guidelines, the City conducted an extensive environmental review of the Uptown Newport project: • Completion of the Notice of Preparation (NOP), which was released for a 30 -day public review period from December 8, 2011, through January 9, 2012. The NOP was sent to all responsible agencies, trustee agencies, and the Office of Planning Research and posted at the Orange County Clerk- Recorder's office and on the City's website on December 8, 2011. • During the NOP review period, a Scoping Meeting was held to solicit additional suggestions on the content of the Uptown Newport EIR. Attendees were provided an opportunity to identify verbally or in writing the issues they felt should be addressed in the EIR. The scoping meeting was held on Thursday, December 15, 2011, at Newport Beach City Hall at 3300 Newport Boulevard, Newport Beach, CA 92658. The notice of the public scoping meeting was included in the NOP. • Preparation of a Draft EIR by the City that was made available for a 45 -day public review period (September 10, 2012, to October 24, 2012). The Draft EIR consisted of three volumes: Volume I contains the text of the Draft EIR and analysis of the Uptown Newport project and Appendix A, Initial Study and Notice of Preparation, and NOP Comment Letters. Volumes II and III contain the technical appendices. The Notice of Availability (NOA) for the Draft EIR was published in the September 9, 2012, edition of the Daily Pilot, a newspaper of general circulation. The NOA was sent to all interested persons, agencies and organizations. The Notice of Completion (NOC) was sent to the State Clearinghouse in Sacramento for distribution to public agencies. The NOA was posted at the Orange County Clerk- Recorder's office on September 10, 2012. Copies of the Draft EIR were made available for public review at the City of Newport Beach Community Development Department, Newport Beach Central Branch Library, Newport Beach Balboa Branch Library, Newport Beach Mariners Branch Library, and Newport Beach Corona del Mar Branch Library. The Draft EIR was available for download via the City's website: http: / /www.newportbeachca.gov. • Preparation of a Final EIR, including the comments and Responses to Comments on the Draft EIR. The Final EIR contains: comments on the Draft EIR, responses to those comments, clarifications /revisions to the Draft EIR, and appended documents. The preliminary Response to Comments were provided to City Planning Commissioners on November 21 and November 30, 2012, and posted on the City's website. The Final EIR was released on November 30, 2012. In compliance with Section 15088(b) of Title 14 of the California Code of Regulations (State CEQA Guidelines), the City has met its obligation to provide written Responses to Comments to public agencies at least 10 days prior to certifying an EIR. • The Environmental Quality Affairs Committee (EQAC) scheduled a meeting on October 1, 2012, to review and comment on the Draft EIR. The meeting was not held due to the lack of quorum in attendance. EQAC members were encouraged to submit their comments individually on the Draft EIR. 22 Planning Commission Resolution No. Page 18 of 103 • A Planning Commission Study Session was held for the proposed project and Draft EIR on October 4, 2012. • A Planning Commission public hearing was held on December 6, 2012. A notice for this meeting was published in the Daily Pilot, mailed to all property owners within 300 feet of the project site and to all interested persons, agencies and organizations, and posted at the project site a minimum of 10 days in advance of this hearing, consistent with the Municipal Code. Additionally, the item appeared on the agenda for this meeting, which was posted at City Hall and on the City website. For purposes of CEQA and these Findings, the Record of Proceedings for the proposed project consists of the following documents and other evidence, at a minimum: • All information submitted to the City by the Applicant and its representatives relating to the project and /or the Final EIR, including but not limited to the Uptown Newport Specific Plan, Tentative Tract Map, AHIP, Development Agreement, and the Traffic Study pursuant to the Traffic Phasing Ordinance; • NOP and all other public notices issued by the City in conjunction with the proposed project; • The Scoping Meeting notes held during the 30 -day NOP period; • The Final EIR, including the Draft EIR and all appendices, the Responses to Comments document, and all supporting materials referenced therein. All documents, studies, EIRs, or other materials incorporated by reference in the Draft EIR and Final EIR. The reports and technical memoranda included or referenced in the Response to Comments of the Final EIR; • All written comments submitted by agencies and members of the public and testimony provided at the October 4, 2012, Planning Commission Study Session during the 45- day public review comment period on the Draft EIR; • All responses to written comments submitted by agencies and members of the public provided at the December 6, 2012, Planning Commission Public Hearing; • All testimony provided by agencies and members of the public at the Planning Commission public hearing on December 6, 2012; • All final City Staff Reports relating to the Draft EIR, Final EIR, and the project; • All other public reports, documents, studies, memoranda, maps, or other planning documents relating to the project, the Draft EIR, and the Final EIR prepared by the City, consultants to the City, or Responsible or Trustee Agencies. • The Mitigation Monitoring and Reporting Program (MMRP) adopted by the City for the project; the Ordinances and Resolutions adopted by the City in connection with the proposed project; and all documents incorporated by reference therein; • These Findings of Fact and Overriding Considerations adopted by the City for the project, any documents expressly cited in these Findings of Fact; 23 Planning Commission Resolution No. Page 19 of 103 • Any other relevant materials required to be in the record of proceedings by Public Resources Code Section 21167.6(e). The documents and other material that constitute the record of proceedings on which these findings are based are located at the City of Newport Beach Community Development Department. The custodian for these documents is the City of Newport Beach. This information is provided in compliance with Public Resources Code Section 21081.6(a)(2) and 14 California Code Regulations Section 15091(e). 4. ENVIRONMENTAL ISSUES THAT WERE DETERMINED NOT TO BE POTENTIALLY AFFECTED BY THE PROPOSED PROJECT Impacts Determined Less than Significant in the Initial Study As a result of the Notice of Preparation circulated by the City on December 8, 2011, in connection with preparation of the EIR, the City determined, based upon the threshold criteria for significance, that the project would have no impact or a less than significant impact on the following potential environmental issues, and therefore, determined that these potential environmental issues would not be addressed in the Draft EIR. Based upon the environmental analysis presented in the EIR, and the comments received by the public on the Draft EIR, no substantial evidence was submitted to or identified by the City which indicated that the project would have an impact on the following environmental areas: (a) Aesthetics. The project would not substantially damage scenic resources, including, but not limited to, trees, rock outcropping, and historic buildings within a scenic highway. (b) Agriculture and Forest Resources: The project site does not contain Prime Farmland, Unique Farmland, or Farmland of Statewide Importance. No portion of the project site is covered by a Williamson Act Contract. Additionally, the project site does not include forest resources, including timberlands, and is not zoned for agriculture. (c) Biological Resources. The project would not have a substantial adverse effect on any riparian habitat or other sensitive natural community or have an effect on federally protected wetlands. It would not conflict with any local policies or ordinances protecting biological resources, or conflict with the provisions of an adopted Habitat Conservation Plan, Natural Community Conservation Plan, or other approved local, regional, or state habitat conservation plan. (d) Geology and Soils. The project would not expose people or structure to potential substantial adverse effects involving rupture of a known earthquake fault as delineated on the most recent Alquist - Priolo Earthquake Zoning Map or based on other substantial evidence of a known fault, or expose people or structures to landslides. The proposed project would not use septic systems or alternative waste water disposal systems. Mil Planning Commission Resolution No. Page 20 of 103 (e) Hazards and Hazardous Materials. The proposed project would not emit hazardous emissions or handle hazardous materials, substances or waste within one - quarter mile of an existing or proposed school. The closest school is UCI which is greater than one - quarter mile from the project site. (f) Hydrology and Water Quality. The proposed project site is not within a 100 -year flood hazard area and would not expose people or structures to significant risk of loss, injury or death involving flooding, or failure of a levee or dam. The project site is not subject to risks related to a seiche, tsunami or mudflows. (g) Land Use and Planning. The project would not conflict with any habitat conservation plan or natural community conservation plan. (h) Mineral Resources: The project would not impact mineral resources of local, regional, or statewide importance. (i) Population or Housing. There is not existing housing on the project site, and therefore, the project would not displace housing or people necessitating the construction of replacement housing. Q) Recreation. The project includes the development of two onsite parks. The potential impacts of developing these parks are addressed in association with the development of the entire site (e.g., grading, air quality, noise, etc.) within the respective areas of the DEIR. (k) Transportation/Traffic. The project would not result in a change in air traffic patterns or result in increased traffic levels or involve design features that would result in substantial safety risks. Project access roads would meet the requirements for fire access pursuant to the 2010 California Fire Code and adequate emergency access would be provided. (1) Utilities and Services Systems. The project would comply with federal, state and local statutes and regulations related to solid waste. Impacts Determined to be Less than Significant in the DEIR The following impacts were evaluated in the DEIR and determined to be less than significant solely through adherence to the project design and adherence to the provisions of the Planned Community Development Plan (PCDP) and standard conditions of the City of Newport Beach. Since the DEIR specifically evaluated the environmental impacts associated with each development phase, Phase 1 and Phase 2, the Findings are also presented by project phase. Where the Findings for Phase 1 and Phase 2 are the same, they are presented under a combined heading. 25 Planning Commission Resolution No. Page 21 of 103 Phase 1 Based upon the environmental analysis presented in the EIR and the comments received by the public on the Draft EIR, no substantial evidence was submitted to or identified by the City indicating that Phase 1 (only) of the project would have an impact on the following environmental areas: (a) Hazards and Hazardous Materials: The existing Southern California Edison substation would not cause significant impacts related to electric and magnetic field health hazards. Phase 2 Based upon the environmental analysis presented in the EIR and the comments received by the public on the Draft EIR, no substantial evidence was submitted to or identified by the City indicating that Phase 2 (only) of the project would have an impact on the following environmental areas: (b) Hazards and Hazardous Materials: After the removal of the TowerJazz manufacturing facility, residents would not be at risk from accidental release of chemicals stored at the TowerJazz facility. Phases 1 and 2 Based upon the environmental analysis presented in the EIR, and the comments received by the public on the Draft EIR, no substantial evidence was submitted to or identified by the City indicating that the project (Phases 1 and 2) would have an impact on the following environmental areas: (a) Aesthetics and Visual Resources: The project would not have a substantial adverse effect on scenic vistas, alter the visual appearance of the site, cause shade /shadow impacts, or generate additional light or glare in the project area. (b) Biological Resources: The project would not directly impact sensitive, threatened, or endangered species or affect sensitive species listed in a local or regional plan or policy. (c) Cultural Resources: The project would not impact historic resources or disturb any known human remains. (d) Geology and Soils: The project would not have any significant impacts related to strong seismic ground shaking, liquefaction hazards, soil erosion, or soil subsidence. (e) Greenhouse Gas Emissions: Phase 1 of the project would not produce GHG emissions that exceed the per capita threshold of the South Coast Air Quality Management District. At buildout (Phase 2), the project would result in a net decrease in GHG emissions. The project would not conflict with the plans adopted for the purpose of reducing GHG emissions. (f) Hydrology and Water Quality: The project would reduce the amount of impervious surfaces on the site, reducing stormwater volumes and peak flow rates. The project Planning Commission Resolution No. Page 22 of 103 would not have significant impacts related to increases in onsite pollutants during construction or after project development. (g) Land Use and Planning: The project would not divide an established business community. (h) Noise and Vibration: The project traffic would not cause a substantial increase in noise levels and the project site is outside the 65 dBA CNEL noise contour for John Wayne Airport. (i) Population and Housing: The project would not result in substantial increase in population or housing. Q) Public Services: The project would not create significant impacts related to fire protection, police protection, school, or library services. (k) Recreation: The project would meet the City's parkland dedication requirements, and physical impacts to recreational and park spaces would not be significant. (1) Transportation and Traffic: The project - generated traffic would not conflict with applicable City plans governing the performance of the area -wide circulation system; result in traffic impacts per the City's traffic phasing ordinance analysis requirements; cause significant impacts to the Congestion Management Plan facilities or state highways intersections; result in level of service impacts along freeway segments; or conflict with adopted policies, plan, or programs for alternative transportation. The construction - generated traffic would not detrimentally impact levels of service at intersections and roadways in the service area. (m) Utilities and Service Systems: Project - generated wastewater would not exceed the capacity of existing sewer pipelines and treatment plants; the project would be adequately served by existing water supply and delivery systems; stormwater flow would be reduced in comparison with existing conditions; the Frank R. Bowerman landfill would have sufficient capacity to accommodate project - generated solid waste; and the project would substantially reduce onsite electricity and natural gas consumption. 5. FINDINGS REGARDING POTENTIALLY SIGNIFICANT ENVIRONMENTAL EFFECTS The following potentially significant environmental impacts were analyzed in the EIR, and the effects of the project were considered. Because of environmental analysis of the project and the identification of project design features; compliance with existing laws, codes, and statutes; and the identification of feasible mitigation measures (together referred herein as the Mitigation Program), some potentially significant impacts have been determined by the City to be reduced to a level of less than significant, and the City has found —in accordance with CEQA Section 21081(a)(1) and State CEQA Guidelines Section 15091(a) (1) —that "Changes or alterations have been required in, or incorporated into, the project which mitigate or avoid the significant effects on the environment. This is referred to herein as "Finding 1." Where the City has determined — pursuant to CEQA Section 21081(a)(2) and State CEQA Guidelines Section 15091(a)(2) —that "Those changes or alterations are within 27 Planning Commission Resolution No. Page 23 of 103 the responsibility and jurisdiction of another public agency and have been, or can and should be, adopted by that other agency," the City's finding is referred to herein as "Finding 2." Where, as a result of the environmental analysis of the project, the City has determined that either (1) even with the identification of project design features, compliance with existing laws, codes and statutes, and /or the identification of feasible mitigation measures, potentially significant impacts cannot be reduced to a level of less than significant, or (2) no feasible mitigation measures or alternatives are available to mitigate the potentially significant impact, the City has found in accordance with CEQA Section 21081(a)(3) and State CEQA Guidelines Section 15091(a)(3) that "Specific economic, legal, social, technological, or other considerations, including considerations for the provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or alternatives identified in the environmental impact report." This is referred to herein as "Finding 3." A. Air Quality (1) Potential Impact: Short-term construction emissions generated by the Uptown Newport project would result in NOx emissions that exceed South Coast Air Quality Management District's regional significance thresholds and would cumulatively contribute to the nonattainment designations of the South Coast Air Basin. Phases 1 and 2 Finding: 3. Mitigation measures would not reduce construction emission levels to less than significant levels. The City hereby makes Finding 3 and determines that this impact is significant and unavoidable. Facts in Support of Finding Phases 1 and 2: Mitigation Measure 2 -1 would reduce NOx generated by exhaust. Table 5.2 -16 shows construction emissions with adherence to Mitigation Measures 2 -1 and 2 -2. Use of newer construction equipment would reduce construction emissions onsite. However, onsite emissions in addition to offsite emissions generated by haul trucks would generate substantial quantities of NOx and would continue to exceed SCAQMD's regional significance threshold during site preparation (year 2014 for Phase 1 and years 2017 and 2018 for Phase 2) and when construction activities of various phases overlap (year 2017 and 2018). Off -road construction equipment and on -road haul trucks for demolition, soil export, and construction materials are the primary source of NOx emissions. Therefore, of the eight years of construction, project - related construction activities would only exceed SCAQMD's threshold for three years because significant off -road equipment use and haul trucks are not necessary during vertical building construction. Therefore, Impact 5.2 -2 would remain significant and unavoidable. M Planning Commission Resolution No. Page 24 of 103 Mitigation Measures MM 2 -1 The construction contractor shall use construction equipment rated by the United States Environmental Protection Agency as having Tier 3 or higher exhaust emission limits for equipment over 50 horsepower that are onsite for more than 5 days. Tier 3 engines between 50 and 750 horsepower are available for 2006 to 2008 model years. After January 1, 2015, equipment over 50 horsepower that are onsite for more than 5 days shall be equipment meeting the Tier 4 standards, if available. A list of construction equipment by type and model year shall be maintained by the construction contractor onsite. A copy of each unit's certified Tier specification shall be provided at the time of mobilization of each applicable unit of equipment. Prior to construction, the City of Newport Beach shall ensure that all demolition and grading plans clearly show the requirement for United States Environmental Protection Agency Tier 3 or higher emissions standards for construction equipment over 50 horsepower during ground- disturbing activities. In addition, equipment shall properly service and maintain construction equipment in accordance with the manufacturer's recommendations. Construction contractors shall also ensure that all nonessential idling of construction equipment is restricted to five minutes or less in compliance with California Air Resources Board's Rule 2449. MM 2 -2 The construction contractor shall implement the following measures or provide evidence to the City of Newport Beach that implementation would not be feasible: • If electricity is not available onsite, generators, welders, and air compressors shall use alternative fuels (i.e., electric, natural gas, propane, solar). • Construction parking shall be configured to minimize traffic interference. • Construction trucks shall be routed away from congested streets and sensitive receptors. • Construction activities that affect traffic flow on the arterial system shall be scheduled to off -peak hours to the extent practicable. • Temporary traffic controls, such as a flag person(s), shall be provided, where necessary, to maintain smooth traffic flow. • Large shipments of construction materials and /or equipment requiring use of heavy -heavy duty tractor trailers (e.g., 53 -foot truck) shall use EPA - certified SmartWay trucks. 29 Planning Commission Resolution No. Page 25 of 103 MM 2 -3 Prior to issuance of a grading permit, the construction contractor shall provide a statement to the City of Newport Beach that the construction contractor shall support and encourage ridesharing and transit incentives for the construction crew, such as carpools, shuttle vans, transit passes, or secured bicycle parking for construction workers. City of Newport Beach Standard Conditions There are no specific City- adopted standard operating conditions of approval related to air quality that are applicable to the proposed project at this time; however, project - specific conditions of approval may be applied to the project by the City during the discretionary approval (site development review, tentative tract map, etc.), subsequent design, and /or construction process. (2) Potential Impact: Construction activities associated with the Uptown Newport project could expose sensitive receptors to substantial pollutant concentrations of PM2.5. Phases 1 and 2 Finding: 1. Mitigation measures would reduce construction impacts to sensitive receptors. Thereby, the City makes Finding 1 and impacts are mitigated to less than significant levels. Facts in Support of Finding Phases 1 and 2: Mitigation Measures 2 -4 through 2 -5 would reduce particulate matter concentration generated from exhaust and fugitive dust during construction activities. Table 5.2 -17 shows project - related construction emissions compared to SCAQMD's LSTs with adherence to Mitigation Measures 2 -1 through 2 -6. Mitigation Measure 2 -1 would require use of newer construction equipment, and Mitigation Measure 2 -4 would require additional fugitive dust control measures to be implemented during ground - disturbing activities. Mitigation Measure 2 -5 requires diesel particulate filters installed on equipment used for site improvements during Phase 2 or prohibits overlap of site improvements associated with Phase 2 during construction of Phase 1. As shown in the table, Mitigation Measures 2 -1 through 2 -6 would reduce localized construction emissions below the localized significance thresholds. Therefore, Impact 5.2-4 would be less than significant. Mitigation Measures MM 2-4 The construction contractor shall prepare a dust control plan and implement the following measures during ground- disturbing activities for fugitive dust control in addition to South Coast Air Quality Management District Rule 403 to reduce particulate matter emissions. The City of Newport Beach shall verify compliance that these measures have been implemented during normal construction site inspections. 30 Planning Commission Resolution No. Page 26 of 103 • During all grading activities, the construction contractor shall reestablish ground cover on the construction site through seeding and watering. • During all construction activities, the construction contractor shall sweep streets with Rule 1186— compliant, PM10- efficient vacuum units on a daily basis if silt is carried over to adjacent public thoroughfares or occurs as a result of hauling. • During all construction activities, the construction contractor shall maintain a minimum 24 -inch freeboard on trucks hauling dirt, sand, soil, or other loose materials, and tarp materials with a fabric cover or other cover that achieves the same amount of protection. • During all construction activities, the construction contractor shall water exposed ground surfaces and disturbed areas a minimum of every three hours on the construction site and a minimum of three times per day. Recycled water should be used, if available. • During site preparation, the construction contractor shall stabilize stockpiled materials. Stockpiles within 300 feet of occupied buildings shall not exceed 8 -feet in height, must have a road bladed to the top to allow water truck access, or must have an operational water irrigation system that is capable of complete stockpile coverage. • During all construction activities, the construction contractor shall limit onsite vehicle speeds on unpaved roads to no more than 15 miles per hour. MM 2 -5 The construction contractor during Phase 2 activities shall adhere to one of the following if construction of Phase 1 overlaps with construction of Phase 2: • The construction contractors shall install Level 2 Verified Diesel Emission Control Strategies (VDES) diesel particulate filters (DPF) on large off -road equipment that have engines rated 50 hp or greater during grading, utilities installation, paving, and concrete activities that overlap with Phase 1 building construction. A list of construction equipment by type and model year and type of DPF shall be maintained by the construction contractor onsite. Or • Phase 2 site improvements (grading, utilities installation, paving, and concrete construction subphases) shall not overlap with Phase 1 building construction. 31 Planning Commission Resolution No. Page 27 of 103 • The City of Newport Beach shall verify compliance that one of these measures has been implemented during normal construction site inspections. MM 2 -6 The construction contractor shall post a sign at the entrance to the construction site. The sign shall identify the designated contact person, telephone number, and email address for construction - related complaints. Upon receipt of a compliant, the complaint shall be investigated and corrective action shall be taken, if needed. The construction contractor shall file a report to the City of Newport Beach of the nature of the compliant and action taken to remedy the complaint within two working days. A log of the complaints and resolutions to the complaints shall be maintained onsite. City of Newport Beach Standard Conditions There are no specific City- adopted standard operating conditions of approval related to air quality that are applicable to the proposed project at this time; however, project - specific conditions of approval may be applied to the project by the City during the discretionary approval (site development review, tentative tract map, etc.), subsequent design, and /or construction process. B. Biological Resources (1) Potential Impact: The proposed project would remove habitat that could be used for nesting by migratory birds. Phases 1 and 2 Finding: 1. The City hereby makes Finding 1 and determines that this impact is less than significant with the incorporation of the proposed mitigation measures. Facts in Support of Finding Phases 1 and 2: Mitigation Measure 3 -1 requires survey and identification of any active nests in or near the project site by a qualified biologist during construction. Compliance with the requirements of Mitigation Measure 3 -1 would reduce potential impacts to migratory birds to less than significant levels. Mitigation Measures MM 3 -1 Prior to any proposed actions during the breeding season, January 31st through September 15th, the monitoring biologist shall conduct a pre - construction survey(s) to identify any active nests in and near the project area no more than three days prior to project initiation. If the biologist does not find any active nests that would be potentially impacted, the proposed action may proceed. Any active nests observed during the 32 Planning Commission Resolution No. Page 28 of 103 survey shall be mapped on a recent aerial photograph, including documentation of GPS coordinates. If the biologist finds an active nest within or adjacent to the action area and determines that the nest may be impacted, the biologist shall delineate an appropriate buffer zone around the nest using temporary plastic fencing or other suitable materials, such as barricade tape and traffic cones. The buffer zone shall range from a 300- to 500 -foot radius at the discretion of the biologist. Only activities approved by the qualified biologist shall take place within the buffer zone until the nest is vacated. Once the nest is no longer active, the proposed action may proceed within the buffer zone. City of Newport Beach Standard Conditions There are no specific City- adopted standard operating conditions of approval related to biological resources that are applicable to the proposed project at this time; however, project- specific conditions of approval may be applied to the project by the City during the discretionary approval (site development review, tentative tract map, etc.), subsequent design, and /or construction process. C. Cultural Resources (1) Potential Impact: Development of the project site, including excavation as deep as 15 feet, could impact archaeological and /or paleontological resources. Phases 1 and 2 Finding: 1. The City hereby makes Finding 1 and determines that this impact is less than significant with the incorporation of the proposed mitigation measures. Facts in Support of Finding Phases 1 and 2: Mitigation Measure 4 -1 requires a professional archaeologist to be retained to monitor ground- disturbing activities, determine potential to disturb cultural resources, and halt construction activities if necessary. Mitigation Measure 4 -2 requires an Orange County— certified professional paleontologist to be retained during ground- disturbing activities to assess potential impacts to paleontological resources and prepare a paleontological mitigation plan if required. The requirements set forth in Mitigation Measures 4 -1 and 4 -2 would reduce paleontological impacts to less than significant levels. Mitigation Measures MM 4 -1 Prior to the issuance of grading permits, the project applicant shall demonstrate to the Community Development Department that an Orange County — certified professional archaeologist has been retained to monitor any potential impacts to archaeological or historic resources throughout 33 Planning Commission Resolution No. Page 29 of 103 the duration of any ground- disturbing activities at the project site. The archeologist shall develop a Cultural Resources Awareness Training program, which shall provide examples of the types of resources that might be encountered and detail procedures to be implemented in that event. The qualified archeologist shall be present at the pregrade meeting to present the training program to all earthmoving personnel and their supervisors and to discuss the monitoring, collection, and safety procedures of cultural resources, if any are found. If subsurface cultural resources are inadvertently discovered during ground- disturbing activities, the construction contractor shall ensure that all work stops within 25 feet of the find until the qualified archeologist can assess the significance of the find and, if necessary, shall develop appropriate treatment or disposition of the resources in consultation with the City of Newport Beach and a representative of the affected Native American tribe (Gabrielino). The archeological monitor shall have the authority to halt any project - related activities that may be adversely impacting potentially significant cultural resources. Suspension of ground disturbances in the vicinity of the discoveries shall not be lifted until an archeological monitor has evaluated the discoveries to assess whether they are classified as significant cultural resources, pursuant to the California Environmental Quality Act. MM 4 -2 Prior to the issuance of grading permits, the project applicant shall demonstrate to the Community Development Department that an Orange County — certified professional paleontologist has been retained to monitor any potential impacts to paleontological resources throughout the duration of any ground- disturbing activities at the project site. The paleontologist shall review the project's final plans and develop and implement a Paleontological Mitigation Plan, which shall include the following minimum elements: • All earthmoving activities eight -feet or more below the current surface shall be monitored full -time by a qualified paleontological monitor. • If fossils are discovered, the paleontological monitor has the authority to temporarily divert work within 25 feet of the find to allow recovery of the fossils and evaluation of the fossil locality. • Fossil localities shall require documentation including stratigraphic columns and samples for micropaleontological analyses and for dating. • Fossils shall be prepared to the point of identification and evaluated for significance. M4r Planning Commission Resolution No. Page 30 of 103 • Significant fossils shall be cataloged and identified prior to being donated to an appropriate repository. • The final report shall interpret any paleontological resources discovered in the regional context and provide the catalog and all specialists' reports as appendices. City of Newport Beach Standard Conditions The following City- adopted standard operating conditions of approval would apply to the proposed project: • The City of Newport Beach has standard conditions requiring a qualified archaeologist and a paleontologist to observe construction activities and to establish procedures for redirecting work, evaluating resources, and recommending appropriate actions. More specific requirements have been prepared for this project by the cultural resources consultant, and in lieu of the standard conditions, are included in the mitigation measures below. D. Geology and Soils (1) Potential Impact: Development of the project could expose people and structures to hazards arising from expansive soils. Phases 1 and 2 Finding: 1. The City hereby makes Finding 1 and determines that this impact is less than significant with the incorporation of the proposed mitigation measures. Facts in Support of Finding Phases 1 and 2: On the project site, sandy to silty clays from onsite borings were found to have medium to high expansion indices. During grading operations within approximately the upper five feet of soils, the mixing and placement of various onsite soils as engineered, compacted fills would reduce hazards from expansive soils. However, additional testing of soil for expansion potential shall be conducted before the design - building phases of buildings in the Uptown Newport project. Mitigation 6 -1 requires soil testing for expansion potential to be conducted by a professional engineering geologist or registered geotechnical engineer. Compliance with the requirements of this mitigation measure would reduce expansive soil impacts to a less than significant level. Mitigation Measures MM 6 -1 Prior to issuance of any grading permits for the project, the project applicant shall have soil testing for expansion potential conducted by a professional engineering geologist or registered geotechnical engineer. 35 Planning Commission Resolution No. Page 31 of 103 The geologist or engineer shall prepare a report describing the sampling and testing; findings; any hazards related to the findings; and recommendations for reducing any hazards identified. The project applicant shall submit a copy of the report to the City of Newport Beach Community Development Department for review and approval by the City Building Division. City of Newport Beach Standard Conditions There are no specific City- adopted standard operating conditions of approval related to geology and soils that are applicable to the proposed project at this time; however, project- specific conditions of approval may be applied to the project by the City during the discretionary approval (site development review, tentative tract map, etc.), subsequent design, and /or construction process. E. Hazards and Hazardous Materials (1) Potential Impact: Prior to the demolition of the TowerJazz manufacturing facility in Phase 2 of the project, residents of Phase 1 of the project could be at risk from an accidental release of chemicals stored at the TowerJazz facility. Phase 1 Finding: 1. The City hereby makes Finding 1 and determines that this impact would be reduced to less than significant levels with the incorporation of the proposed mitigation measures. (Under Phase 2, this impact is not potentially significant.) Facts in Support of Finding Phase 1: The provisions of Mitigation Measures 7 -1 through 7 -4 would reduce the hazards impacts of the TowerJazz facility to residents during the first phase of the project. These mitigation measures require compliance for specific sections of the California Fire Code and City of Newport Beach Fire Department standards, emergency notification and disclosures, and new requirements for the use of extremely hazardous substances at the TowerJazz facility. Compliance with the provisions of Mitigation Measures 7 -1 through 7 -4 would reduce the risk of potential exposure of Phase 1 residents to hazards on the project site, and impacts would be less than significant. Mitigation Measures MM 7 -1 In compliance with CFC Section 381.1 (Amendment), prior to issuance of building permits for Phase 1, the project applicant shall submit a geologic study from a state- licensed and department- approved individual or firm to the Newport Beach Fire Department Fire Prevention Division for review and approval (due to the proximity of the proposed project to a semiconductor facility). so Planning Commission Resolution No. Page 32 of 103 MM 7 -2 Prior to issuance of any building permit for Phase 1, the applicant shall demonstrate compliance with CFC Section 27041.1 (Amendment), which prohibits the storage of any amount of extremely hazardous substances equal to or greater than the disclosable amounts listed in Appendix A, Part 355, Title 40, of the Code of Federal Regulations in a residential zone or adjacent to property developed with residential uses. Compliance shall be demonstrated to the satisfaction of the Newport Beach Fire Department and shall include the following: • Installation of a new anhydrous ammonia tank at a minimum distance of 200 feet from the nearest existing or proposed residential structure (including the adjacent Koll property project). The new tank shall be approved by the Newport Beach Fire Department, and the tank and installation shall include mitigation safeguards such as: automatic shut -off valves, excess flow valves, restrictive flow orifices, toxic gas detection system, automatic sprinkler system, water deluge system, alarm system, and double containment piping. An updated Offsite Consequence Analysis (OCA) shall be prepared to the satisfaction of the Fire Department prior installation of the new tank. • In the event a new anhydrous ammonia tank is not installed or the existing tank relocated, no residential structures shall be constructed within 200 feet of the anhydrous ammonia tank. • Demonstration of maintenance of industry best practices and provision of minimum EPGR -2 separation distances as defined by the EPA for any extremely hazardous substances (EHS) in excess of disclosable amounts. The use of the term "adjacent to" (per CFC Section 27041.1 (Amendment) shall be interpreted to be a greater distance than an offsite consequence analysis would require as a safe EPGR -2 (or an equivalent and accepted standard) separation distance (ibid). MM 7 -3 Prior to the issuance of occupancy permits, the applicant shall demonstrate to the satisfaction of the City of Newport Beach Fire Department that the following disclosures and emergency notification procedures /programs are in place: • Disclosure to potential Uptown Newport residences that hazardous chemicals are used and stored at the adjacent TowerJazz facility. • Inclusion of property manager or authorized representative of the Uptown Newport residential community to the emergency notification list of the TowerJazz Business Emergency Plan. 37 Planning Commission Resolution No. Page 33 of 103 • Program to inform /train the property manager or authorized representative of the Uptown Newport residential community in emergency response and evacuation procedures and to incorporate ongoing coordination between the Uptown Newport representative and TowerJazz to assure proper action in the event of an accident at the facility (shelter in place and /or evacuation routes). • Upgrade TowerJazz emergency alarm system to include concurrent notification to Uptown Newport residents of chemical release. Provisions of the alarm system and emergency notification procedure shall be reviewed and approved by the City of Newport Beach Fire Department. MM 7-4 Prior to the introduction of a new extremely hazardous substance (EHS) or increase in quantity of any existing EHS at TowerJazz, an updated OCA shall be prepared and reviewed and authorized by the City of Newport Beach Fire Department. Any new EHS shall be appropriately located and the installation designed with all necessary mitigation safeguards specified by the City of Newport Beach Fire Department. City of Newport Beach Standard Conditions The project would be subject to the Newport Beach Fire Department Guidelines and City of Newport Beach Fire Code (City Municipal Code Chapter 9.04). Specific Conditions of Approval pursuant to these requirements would be specified by the Newport Beach Fire Department, and would include compliance with the following California Fire Code (CFC) requirements: • Sections 318.1 (Amendment). A geological study from a state - licensed and department- approved individual or firm will be required due to the proximity of the proposed project to a semiconductor manufacturing facility. • Section 2704.1.1 (Amendment). No person shall use or store any amount of extremely hazardous substances equal to or greater than the disclosable amounts as listed in Appendix A, part 355, Title 40 of the Code of Federal Regulation in a residential zone or adjacent to property developed with residential uses. (2) Potential Impact: The project site is included on a list of hazardous material sites. Project development, including soil disturbance from site grading and construction activities, could pose substantial hazards to people or the environment through the release of hazardous materials. ON Planning Commission Resolution No. Page 34 of 103 Phase 1 Finding: 1. The City hereby makes Finding 1 and determines that this impact (migration of VOCs from TowerJazz) would be reduced to less than significant levels with the incorporation of the proposed mitigation measures. Phase 2 Finding: 1. The City hereby makes Finding 1 and determines that this impact (contaminated soil disturbance from removal of TowerJazz) would be reduced to less than significant levels with the incorporation of the proposed mitigation measures. Facts in Support of Finding Phase 1: Based on conclusion in the ESA and Vapor Intrusion HRA, contamination of the Phase 1 portion of the site is limited to potential migration of VOCs from the Phase 2 portion of the site. A "No Further Action" declaration or a Letter of Allowance for residential construction for Phase 1 must be is provided by the RWQCB in order for impacts to be considered less than significant. Mitigation Measure 7 -5 requires issuance of this letter prior to the issuance of building permits. (A "No Further Action" letter, dated November 1, 2012, was issued by the RWQCB for Phase 1 and is included as an Appendix to Final EIR.) Mitigation Measure MM 7 -5 Prior to the issuance of building permits for development within Phase 1, the project applicant shall obtain a "No Further Action" declaration or Letter of Allowance for residential construction for Phase 1 from the Regional Water Quality Control Board. City of Newport Beach Standard Conditions See the City of Newport Beach Standard Conditions listed under E.1. Phase 2: Soil disturbance from site grading and construction activities within the Phase 2 portion of the site could result in the release of hazardous materials that could impact Phase 1 residents and nearby office occupants. Phase 2 development could not occur until the RWQCB provides a "No Further Action" declaration or a Letter of Allowance for residential construction. The provisions of Mitigation Measures 7 -6 and 7 -7 would reduce potential impacts to less than significant levels. Mitigation Measures MM 7 -6 The project applicant shall submit copies of applicable reports and plans as submitted to the RWQCB for remedial activities within the Phase 2 portion of the project site to the City of Newport Beach Community Development Department. Such copies shall include remediation action plans and annual soil and groundwater remediation progress reports. :9 Planning Commission Resolution No. Page 35 of 103 MM 7 -7 Prior to the issuance of building permits for development within Phase 2, the project applicant shall obtain a "No Further Action" declaration or Letter of Allowance for residential construction for Phase 2 from the Regional Water Quality Control Board. City of Newport Beach Standard Conditions See City of Newport Beach Standard Conditions listed under E.1. (3) Potential Impact: Demolition of onsite buildings could result in a health risk due to the release of hazardous building materials, including asbestos and lead paint. Phases 1 and 2 Finding: 1. Both phases of development require the demolition of buildings that likely contain asbestos - containing material (ACM) and /or lead -based paint (LBP). Mitigation Measure 7 -8 would reduce impacts related to ACM and LBP to less than significant levels. Facts in Support of Finding Phases 1 and 2: Mitigation Measure 7 -8 requires compliance with LBP and ACM regulations and documentation of testing. This would reduce the potential LBP and ACM impacts to less than significant levels. Mitigation Measures MM 7 -8 Prior to issuance of demolition permits, the project applicant shall have the following inspections and assessments conducted for the Half Dome building (Phase 1) and TowerJazz building (Phase 2) and shall provide the Community Development Department with a copy of the report of each investigation or assessment. • The applicant shall retain a certified lead inspector /assessor to inspect buildings onsite including any structures at the SCE substation for lead -based paint (LBP). The inspector /assessor's report shall describe regulatory requirements for lead containment applicable to any LBP discovered onsite. • The applicant shall retain a licensed or certified asbestos consultant to inspect buildings onsite including any structures at the SCE substation for asbestos - containing materials (ACM). The asbestos consultant's report shall include requirements for abatement, containment, and disposal of ACM in South Coast Air Quality Management District Rule 1403. ON Planning Commission Resolution No. Page 36 of 103 City of Newport Beach Standard Conditions See City of Newport Beach Standard Conditions listed under E.1. (4) Potential Impact: Future residents and visitors of Phase 1 of the project would not be exposed to unacceptable levels of VOCs as a result of vapor intrusion into buildings. The health risk associated with potential soil vapor intrusion of VOCs for future Phase 2 residents is undetermined. Phase 1 Finding: 1. The City hereby makes Finding 1 and determines that this impact would be reduced to less than significant levels with the incorporation of the proposed mitigation measures. Phase 2 Finding: 1. The City hereby makes Finding 1 and determines that this impact would be reduced to less than significant levels with the incorporation of the proposed mitigation measures. Facts in Support of Finding Phase 1: Phase 1 development could not occur until the Regional Water Quality Control Board ( RWCCB), as lead oversight for the remediation of the project site, has cleared the site for residential development. The RWQCB may issue a "No Further Action" declaration or Letter of Allowance for residential construction for Phase 1, as stated in Mitigation Measure 7 -3. Compliance with this requirement would reduce impacts to less than significant levels. (A "No Further Action" letter, dated November 1, 2012, was issued by the RWQCB for Phase 1 and is included as an Appendix to Final E I R). Mitigation Measure 7 -3 applies to this impact. Phase 2: The Environmental Site Assessment (ESA) concluded that potential soil vapor intrusion of VOCs north and northwest of the TowerJazz building would be a significant concern for development of Phase 2 and recommended additional soil -gas characterization of the site. Mitigation Measures 7 -9 and 7 -10 require additional health risk assessments pursuant to the RWQCB requirements and the remediation of any soil and groundwater contamination. Again, the RWQCB must issue a "No Further Action" declaration or Letter of Allowance for residential construction. Compliance with the requirements in Mitigation Measures 7 -9 through 7 -10 would reduce impacts to less than significant levels. raja" Planning Commission Resolution No. Page 37 of 103 Mitigation Measures MM 7 -9 Prior to the issuance of building permits for Phase 2, the project applicant shall retain a registered environmental assessor or other professional qualified to conduct a human health risk assessment (HHRA) of potential volatile organic compound contamination. The HHRA shall be conducted under the guidance and review of the Regional Water Quality Control Board. Approval of tentative tract map(s) for Phase 2 shall not occur until the project applicant obtains a "No Further Action" declaration or a Letter of Allowance for residential construction from the Regional Water Quality Control Board. MM 7 -10 Prior to issuance of a building permits for Phase 2 development, the project applicant shall demonstrate to the Community Development Department that contamination in soil and groundwater on Phase 2 has been remediated to meet the cleanup goal for the site for total volatile organic compounds set by the State Water Resources Control Board and shall have obtained a "No Further Action" declaration or Letter of Allowance for residential construction from the Regional Water Quality Control Board. City of Newport Beach Standard Conditions See City of Newport Beach Standard Conditions listed under E.1. (5) Potential Impact: The existing SCE substation may present health hazards related to electric and magnetic fields (EMF) and /or upon demolition, release of hazardous materials. Phase 2 Finding: 1. The City hereby makes Finding 1 and determines that this impact would be reduced to less than significant levels with the incorporation of the proposed mitigation measures. (Under Phase 1, this impact is not potentially significant.) Facts in Support of Finding Phase 2: The demolition of the SCE substation presents risks of exposure to PCBs and related material. Mitigation Measure 7 -11 requires certified inspection and the establishment of a mitigation program should PCBs or other hazardous materials be identified. Compliance with this mitigation measure would reduce impacts to less than significant levels. Mitigation Measures MM 7 -11 Prior to the issuance of demolition permits for Phase 2, the construction dates for the SCE Substation shall be confirmed. If the facility was Fiji" Planning Commission Resolution No. Page 38 of 103 constructed prior to the 1980's, a certified inspector approved by the City of Newport Beach Fire Department shall be retained to test for PCBs and related hazardous materials. If PCBs or other hazardous materials are determined to be present, a mitigation program to abate, contain and dispose of the materials shall be prepared and approved by the City Fire Department. Such program shall be implemented prior to the issuance of Phase 2 building permits. Mitigation Measures 7 -9 and 7 -10 also apply to this impact. City of Newport Beach Standard Conditions See City of Newport Beach Standard Conditions listed under E.1. F. Land Use and Planning (1) Potential Impact: Project implementation would potentially conflict with applicable plans adopted for the purpose of avoiding or mitigating and environmental effect. The Airport Land Use Commission has determined that the project is inconsistent with the Airport Environs land Use Plan (AELUP) for John Wayne Airport. Phases 1 and 2 Finding: 3. The City hereby makes Finding 3 and determines that there are no mitigation measures to reduce this impact to less than significant levels. This impact is significant and unavoidable and would require the adoption of a Statement of Overriding Considerations. Facts in Support of Finding Phases 1 and 2: Due to the proximity of the proposed project to the Orange County John Wayne Airport, the project must be consistent with the Airport Land Use Commission's (ALUC) regulations. Since the proposed project requires an amendment to the Koll Center Newport PCDP and adoption of its own zoning (PCDP), a consistency determination by ALUC is required prior to the Newport Beach City Council taking action on the project. The ALUC considered the proposed project at its October 18, 2012, public hearing and voted to find the project inconsistent with the Commission's AELUP for John Wayne Airport (JWA) and AELUP for heliports. The Commission based their inconsistency decision on Section 2.1.1 of the JWA AELUP, which states: "the Commission may utilize criteria for protecting aircraft traffic patterns at individual airports which may differ from those contained in FAR Part 77, should evidence of health, welfare, or air safety surface sufficient to justify such an action." Since the ALUC has made the determination that Uptown Newport is not consistent with the AELUP, approval of the project will require a two - thirds vote to override this determination. No mitigation measures are available to reduce the potentially G'm Planning Commission Resolution No. Page 39 of 103 significant impact. This impact is a significant unavoidable adverse impact and would require a Statement of Overriding Considerations. City of Newport Beach Standard Conditions There are no specific City- adopted standard operating conditions of approval related to land use and planning that are applicable to the proposed project at this time. However, project- specific conditions of approval may be applied to the project by the City during the discretionary approval (site development review, tentative tract map, etc.), subsequent design, and /or construction process. Additionally, other applicable standard conditions are encompassed in the topical conditions that affect land use compatibility, including air quality, noise, and traffic. G. Noise and Vibration (1) Potential Impact: The proposed project would introduce new stationary noise sources that would result in small noise increases in the vicinity of noise - sensitive land uses. Phases 1 and 2 Finding: 1. The City hereby makes Finding 1 and determines that this impact would be reduced to less than significant levels with the incorporation of the proposed mitigation measures. Facts in Support of Finding Phases 1 and 2: Proposed noise - sensitive uses would be exposed to noise levels from subterranean parking garage activity and truck deliveries exceeding thresholds stated in the City's Municipal Code for residential uses. Mitigation Measures 10 -1 and 10 -2 would require design and operation practices that limit noise generation. Compliance with these mitigation measures would reduce impacts to less than significant levels. Mitigation Measures MM 10 -1 The parking lot surface of all parking garages shall be textured to eliminate tire squeal noise. Ventilation equipment for the parking garages shall be designed to meet the City's noise limits for Zone III, not exceed a daytime maximum of 60 dBA Leq (or 80 dBA Lmax) and a nighttime maximum of 50 dBA LeQ (or 70 dBA Lmax)• This can be accomplished by selecting quieter equipment or by enclosing ventilation equipment. MM 10 -2 Truck deliveries shall be restricted to the daytime hours between 7 AM and 10 PM. RZ9 Planning Commission Resolution No. Page 40 of 103 City of Newport Beach Standard Conditions The following City- adopted standard operating conditions of approval would apply to the proposed project: • The project must comply with the exterior noise standards for residential uses of the Noise Ordinance. The exterior noise level standard is 65 dBA between the hours of 7:00 AM and 10:00 PM and 60 dBA between the hours of 10:00 PM and 7:00 AM. An acoustic study shall be performed by a qualified professional that demonstrates compliance with these standards of the Noise Ordinance. This acoustic study shall be performed and submitted to the Community Development Department as part of the Site Development Review permit application for each residential structure. If the exterior noise levels exceed applicable standards, additional mitigation shall be required, which may include the installation of additional sound attenuation devices as recommended by the acoustic study and subject to the approval of the Community Development Director. • The operator of the proposed commercial uses shall be responsible for the control of noise generated by the subject facility including, but not limited to, noise generated by patrons, food service operations, and mechanical equipment. All noise generated by the proposed use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the Newport Beach Municipal Code. The maximum noise shall be limited to no more than noise limits specified in Table 5.10 -3 for the specified time periods unless the ambient noise level is higher. • All mechanical equipment shall be screened from view of adjacent properties and adjacent public streets for each residential structure, as authorized by a Site Development Review permit, and shall be sound - attenuated in accordance with Chapter 10.26 of the Newport Beach Municipal Code, Community Noise Control. • The City of Newport Beach Municipal Code Chapter 10.32, Sound - Amplifying Equipment requires a permit for use of any sound - amplifying equipment and regulates the volume so sound - amplifying equipment is not a nuisance to persons. The use of sound - amplifying equipment is prohibited outdoors between the hours of 8 PM and 8 AM. • The City of Newport Beach General Plan Noise Element, thru Policy N 3.2, requires that residential development in the airport area be outside of the 65 dBA CNEL noise contour no larger than shown in the 1985 JWA Master Plan and require residential developers to notify prospective purchasers or tenants of aircraft overflight and noise. Ilf Planning Commission Resolution No. Page 41 of 103 (2) Potential Impact: Proposed onsite noise - sensitive uses would be exposed to exterior noise levels from vehicular traffic and from operation of the TowerJazz facility exceeding the 65 dBA CNEL standard for residential and park uses. Phase 1: Exposure of patios and balconies facing the TowerJazz to noise levels of 65 dBA. Phase 2: Exposure of patios and balconies facing Jamboree Road to noise levels of 65 dBA. Phase 1 Finding: 1. The City hereby makes Finding 1 and determines that this impact would be reduced to less than significant levels with the incorporation of the proposed mitigation measures. Phase 2 Finding: 1. The City hereby makes Finding 1 and determines that this impact would be reduced to less than significant levels with the incorporation of the proposed mitigation measures. Facts in Support of Finding Phases 1: Residential patios and balconies facing the TowerJazz facility and constructed during Phase 1 would be exposed to noise levels above 65 dBA CNEL. Mitigation Measure 10 -3 would reduce noise levels from operation of the TowerJazz facility and provide noise reduction at the common and private exterior living areas to meet the 65 dBA CNEL exterior noise standard. With implementation of Mitigation Measures 10 -3, this impact would be less than significant. Mitigation Measure MM 10 -3 Prior to issuance of building permits for Phase 1, a detailed acoustical study based on architectural plans shall be prepared by a qualified acoustical consultant and submitted to the Community Development Department for review and approval. The study shall demonstrate that all residential units would meet the 65 dBA CNEL exterior noise standard for all patios, balconies, and common outdoor living areas (playgrounds, parks, and swimming pools). The necessary noise reduction may be achieved by implementing noise control measures at the TowerJazz facility and at the receiver locations, as described in detail in the Technical Memorandum provided by Wilson Ihrig and Associates (Appendix J). The technical memorandum includes noise control measures that would be implemented at the rooftop mechanical equipment and at the cooling towers of the TowerJazz facility, summarized below: Planning Commission Resolution No. Page 42 of 103 • Rooftop Mechanical Equipment Noise Control o Exhaust Fan Noise Control: The exhaust fan noise can be most effectively controlled by constructing noise barriers around three sides of each of the exhaust stacks, such that the barriers would be located between the stacks and the future Phase 1 development. In addition to a barrier, sound levels can be reduced by modifying the exhaust stack and fan. o Other Equipment: Other specific pieces of rooftop equipment can be treated with barriers lined with acoustical absorption. Ducts and pipes that radiate significant noise can be treated by adding mass to the duct walls, or lined with acoustical absorption or lead- loaded vinyl. o Screen: The performance of the existing sheet metal parapet wall /screen can be enhanced by treating the upper eight feet of the screen with acoustical absorption. • Cooling Towers Noise Control o Relocation: Moving the cooling towers away from the Phase 1 development would be an effective approach to noise control. o Replacement: Replacement of the existing cooling towers can be considered, as new towers would have new coils with improved air flow and efficiency. o Additional Cooling Towers: Additional cooling towers would reduce the cooling demand on individual units, allowing the fans to operate at lower speed. o Fan Noise: The cooling tower fans appear to be the primary noise source. The fan noise emanates from the top of the cooling towers and from the coils. Waterfall noise, though not readily apparent, also transmits through the coils to the exterior. The following provisions may be applied to the existing cooling towers to reduce cooling tower noise: coil replacement, variable frequency drives, tip seals, aerodynamic fan blades, treatment of the discharge stack, acoustical louvers, and sound barriers. The measures described above, or some combination thereof, would reduce the exterior noise levels at units facing the TowerJazz facility to 65 dBA CNEL. The 47 Planning Commission Resolution No. Page 43 of 103 property owner /developer shall implement these noise control measures at the TowerJazz facility and demonstrate with noise level measurements that noise from the operation of mechanical equipment at the TowerJazz facility would not exceed 65 dBA CNEL at the property boundary or at the nearest receptors. In addition, the final grading and building plans shall incorporate the required noise barriers at common exterior areas and patios (glass /Plexiglas patio enclosures, wall, berm, or combination wall /berm) and at balconies (glass or Plexiglas balconies enclosure). Patio enclosures for units facing the TowerJazz facility would need acoustical absorption to absorb sound in the balcony. The property owner /developer shall install these barriers and enclosures. City of Newport Beach Standard Conditions See the City of Newport Beach Standard Conditions listed under G.1. Phase 2: Residential patios and balconies constructed during Phase 2 and facing Jamboree Road would be exposed to noise levels above 65 dBA CNEL. Mitigation Measure 10 -4 would reduce noise levels from Jamboree Road and provide noise reduction at the common and private exterior living areas to meet the 65 dBA CNEL exterior noise standard. With implementation of Mitigation Measure 10-4, this impact would be less than significant. Mitigation Measures MM 10-4 Prior to issuance of building permits for Phase 2, a detailed acoustical study based on architectural plans shall be prepared by a qualified acoustical consultant and submitted to the Community Development Department to demonstrate that all residential units would meet the 65 dBA CNEL exterior noise standard for all patios, balconies, and common outdoor living areas. The necessary noise reduction may be achieved by implementing noise control measures at the receiver locations. The final grading and building plans shall incorporate the require noise barriers (patio enclosure, wall, berm, or combination wall /berm), and the property owner /developer shall install these barriers and enclosures. City of Newport Beach Standard Conditions See the City of Newport Beach Standard Conditions listed under G.1. (3) Potential Impact: Proposed noise - sensitive uses would be exposed to interior noise levels exceeding the 45 dBA CNEL standard. ■ Planning Commission Resolution No. Page 44 of 103 Phases 1 and 2 Finding: 1. The City hereby makes Finding 1 and determines that this impact would be reduced to less than significant levels with the incorporation of the proposed mitigation measures. Facts in Support of Finding Phases 1 and 2: Standard residential windows and doors would not provide the required exterior -to- interior noise reduction to meet the interior noise level of 45 dBA CNEL. Mitigation Measures 10 -5 and 10 -6 would incorporate noise reduction measures in the building construction for each individual residential structure to provide the necessary exterior -to- interior noise reduction to meet the 45 dBA CNEL interior noise standard. With implementation of Mitigation Measures 10 -5 and 10 -6, this impact would be less than significant. Mitigation Measures MM 10 -5 Prior to issuance of building permits for each residential structure located within Phase 1, a detailed acoustical study based on architectural plans shall be prepared by a qualified acoustical consultant and submitted to the Community Development Department to demonstrate that all residential units would meet the 45 dBA CNEL interior noise standards for habitable rooms (i.e., bedrooms, living rooms, dens, kitchens) due to exterior noise from traffic, aircraft overflights, and stationary noise from the TowerJazz facility. The report shall evaluate the effects of the precise building placement and design materials used for construction. It shall describe and quantify the noise sources impacting the buildings, the amount of outdoor to indoor noise reduction provided by the structure, and any upgrades required to meet the interior noise standard. This standard must be achieved with the windows closed in conjunction with a fresh air mechanical ventilation or air conditioning system, and it may require upgraded construction methods and materials. According to the preliminary assessment provided by Wilson Ihrig and Associates, the required noise reduction at units facing the TowerJazz facility would be achieved with acoustically rated doors and windows with a Sound Transmission Class (STC) no greater than 35. The measures described in the report shall be incorporated into the architectural plans for the buildings and implemented with building construction. MM 10 -6 Prior to issuance of building permits for each residential structure located within Phase 2, a detailed acoustical study based on architectural plans shall be prepared by a qualified acoustical consultant and submitted to the Community Development Department to demonstrate that all residential units would meet the 45 dBA CNEL interior noise standards �9 Planning Commission Resolution No. Page 45 of 103 for habitable rooms (i.e., bedrooms, living rooms, dens, kitchens) with exterior noise from traffic and aircraft overflights. The report shall evaluate the effects of the precise building placement and design materials used for construction. It shall describe and quantify the noise sources impacting the buildings, the amount of outdoor to indoor noise reduction provided by the structure, and any upgrades required to meet the interior noise standard. This standard must be achieved with the windows closed in conjunction with a fresh air mechanical ventilation or air conditioning system, and it may require upgraded construction methods and materials. The measures described in the report shall be incorporated into the architectural plans for the buildings and implemented with building construction. City of Newport Beach Standard Conditions See the City of Newport Beach Standard Conditions listed under G.1. Potential Impact: Construction of the Uptown Newport project would generate vibration levels that exceed the FTA criterion for human annoyance at nearby residential structures and affect the operation of vibration - sensitive equipment at the TowerJazz facility. Phase 1 Finding: 1. The City hereby makes Finding 1 and determines that this impact would be reduced to less than significant levels with the incorporation of the proposed mitigation measures. Phase 2 Finding: 1. The City hereby makes Finding 1 and determines that this impact would be reduced to less than significant levels with the incorporation of the proposed mitigation measures. Facts in Support of Finding Phase 1: The operation of construction equipment during Phase 1 construction would generate vibration that exceeds thresholds for annoyance and architectural damage at the TowerJazz facility, thus with the potential to adversely interfere with the operation of vibration - sensitive equipment at the TowerJazz facility. Mitigation Measures 10 -7 and 10 -8 would incorporate vibration control measures during construction. With Mitigation Measures 10 -7 and 10 -8, feasible vibration control provisions can be incorporated to reduce Phase 1 construction vibration to acceptable levels at the TowerJazz facility. 50 Planning Commission Resolution No. Page 46 of 103 Mitigation Measures MM 10 -7 During Phase 1 construction, the construction contractor shall implement a vibration control program to reduce vibration levels at the TowerJazz facility. The Technical Memorandum prepared by Wilson Ihrig and Associates includes several measures to control vibration at the TowerJazz facility, outlined below: • Pile Driving: o Augured piles shall be employed to the extent possible. Impact and vibratory pile drivers shall not be used during construction unless TowerJazz is consulted to avoid excessive vibration during operation of sensitive equipment. Constant frequency pile drivers might be acceptable if operated at sufficient distance from the TowerJazz facility and if demonstrated to not impact TowerJazz operations. • Heavy Construction Equipment: o Within 200 feet of the TowerJazz facility, wheel loaders and dozers shall be employed rather than the track - laying heavy equipment. Contractor training and notification should be conducted to minimize dozer blades and buckets being dropped on the ground for wheeled equipment operated within 200 feet of the TowerJazz facility. o Static rollers should be employed where compacting is required. To avoid excessive vibration during operation of sensitive equipment, vibratory rollers should not be used unless TowerJazz is consulted and ground vibration produced by such rollers is found to be acceptable to TowerJazz operations. o Hoe rams shall be not be used to break up concrete grade slabs within 100 feet of the TowerJazz facility and office uses adjacent to the project site. Concrete slabs can be sawed and lifted away to another location where they may be broken up by the hoe ram. • Haul Trucks: Haul trucks shall be routed away, to the extent possible, from the TowerJazz facility. Lay -Down Areas: Lay -down areas include material storing areas such as piles, steel shapes, and other heavy items. The lay -down 51 Planning Commission Resolution No. Page 47 of 103 area should be located in portions of the construction site that are at least 200 feet away from the TowerJazz facility. • Vibration Monitoring: Vibration monitoring shall be conducted in the TowerJazz building during development and construction of Phase 1. Vibration monitors shall be located in select locations where sensitive equipment is located in consultation with TowerJazz. The most appropriate location for monitoring would be at the building foundations along the exterior sides facing the construction work. Recommended thresholds for vibration monitoring have been developed based on past vibration monitoring at the TowerJazz facility during the seismic retrofit and on the vibratory characteristics of construction equipment that are anticipated to be used during construction of Phase 1. Recommended thresholds for vibration monitoring are: o A vibration level of 0.125 in /sec will trigger a warning that will notify the construction operator and TowerJazz; o A vibration level of 0.250 in /sec will trigger a warning that will notify the construction operator and TowerJazz of excessive vibration and that the construction activity that is causing the excessive vibration should be stopped. o Construction activity may recommence upon satisfactory assessment that the continued construction activity will not substantially affect the use of vibration- sensitive equipment or interfere with operations at the TowerJazz facility. Final protocol for notification to TowerJazz and construction equipment operators will be determined and documented in a vibration monitoring plan prepared prior to construction. MM 10 -8 Augured piles shall be employed to the extent possible. Impact and vibratory pile drivers shall not be used during construction within 75 feet of any building. City of Newport Beach Standard Conditions See the City of Newport Beach Standard Conditions listed under G.1. Phase 2: The operation of construction equipment during Phase 2 construction would generate vibration that exceeds thresholds for annoyance and architectural damage at the Phase 1 offices and residences. Mitigation Measure 10 -8 would incorporate vibration control measures during construction. With Mitigation Measure 10 -8, feasible vibration control provisions can be incorporated to reduce Phase 2 construction vibration to acceptable levels at the offices and residences. 152 Planning Commission Resolution No. Page 48 of 103 Mitigation Measure 10 -8 applies to this impact. (4) Potential Impact: Construction activities at Uptown Newport would substantially elevate the daytime noise environment in the vicinity of nearby uses. Phases 1 and 2 Finding: 3. The City hereby makes Finding 3 and determines that although mitigation measures are able to reduce the significance of this impact, the impact is not avoided. This impact would be significant and unavoidable. Facts in Support of Finding Phases 1 and 2: During construction of Phase 1, construction activity would have the potential to cause annoyance and interfere with activities at the office buildings and the TowerJazz facility facing the construction area. In addition, construction of Phase 2 would result in high noise levels at the residential uses built during project Phase 1 and at existing office buildings adjacent to the project site. Mitigation Measures 10 -9 to 10 -12 would reduce noise levels from construction activities at the nearby uses during Phase 1 and Phase 2. However, because of the height of the buildings adjacent to the project site, sound walls blocking line of sight between construction activities and nearby noise - sensitive receptors would be infeasible. Because many of the residential areas overlook proposed construction activities, sound walls would not be effective at these locations. Despite the application of mitigation measures, nearby noise - sensitive uses would be temporarily exposed to elevated noise levels during construction activities. This impact would remain significant and unavoidable, and a statement of overriding considerations would be required. Mitigation Measures MM 10 -9 The construction contractor shall ensure that all construction equipment onsite is properly maintained and tuned to minimize noise emissions. MM 10 -10 The construction contractor shall ensure that construction equipment is fit with properly operating mufflers, air intake silencers, and engine shrouds no less effective than as originally equipped by the manufacturer. MM 10 -11 The construction contractor shall locate all stationary noise sources (e.g., generators, compressors, staging areas) as far from residential and recreational receptor locations as is feasible. MM 10 -12 Material delivery, soil haul trucks, equipment servicing, and construction activities shall be restricted to the hours set forth in the City of Newport Beach Municipal Code, Section 10.28.040. 53 Planning Commission Resolution No. Page 49 of 103 City of Newport Beach Standard Conditions See the City of Newport Beach Standard Conditions listed under G.1. 6. FINDINGS REGARDING ALTERNATIVES A. Alternatives Considered and Rejected During the Scoping /Project Planning Process The following is a discussion of the land use alternatives considered during the scoping and planning process and the reasons why they were not selected for detailed analysis in the DEIR. 1. Alternative Project Location CEQA requires that the discussion of alternatives focus on alternatives to the project or its location that are capable of avoiding or substantially lessening any significant effects of the project. Only locations that would avoid or substantially lessen any of the significant effects of the project need be considered for inclusion in the EIR (CEQA Guidelines Section 15126.6[f][2][A]). Key factors in evaluating the feasibility of potential offsite locations for EIR project alternatives include: • if it is in the same jurisdiction; • whether development as proposed would require a General Plan Amendment; • whether the project applicant could reasonably acquire, control, or otherwise have access to the alternative site (or the site is already owned by the proponent) (CEQA Guidelines Section 15126.6[f][1]). Since the project applicant does not own or control other property within the City, the evaluation of potential alternate sites focused on sites that could accommodate a development similar to the proposed project without a General Plan Amendment within the City limits. In addition to the Airport Area, three other areas in the City allow mixed use similar to the proposed project. These include a strip of parcels along the northern side of Coast Highway in the Mariner's Mile Corridor, a number of parcels along the northern end of Newport Center fronting San Joaquin Hills Road, and a number of interior parcels of the Cannery Village area. As shown in the City's General Plan Land Use Element in Figures LU26, "Mariner's Mile," LU21, "Newport Center /Fashion Island," and LU19, "Balboa Peninsula, Lido Village, Cannery Village, McFadden Square," these areas are designated Mixed Use Horizontal 1 (MU -1-11), Mixed Use Horizontal 3 (MU -1­13), and Mixed Use Horizontal 4 (MU -1­14), respectively. The allowed residential density for these areas, however, is less than allowed for the proposed project site. The MU -H1 and MU -H4 designations permit a density of 20.1 to 26.7 dwelling units per net acre (du /acre), and the areas designated MU -H3 are only permitted a maximum of 450 dwelling units. These areas of mixed -use designation do not =r Planning Commission Resolution No. Page 50 of 103 have adequate size or density to accommodate a project similar to Uptown Newport, which would include 1,244 dwelling units at a density of 50 du /acre. Other sites within the Airport Area could accommodate the proposed project without a General Plan Amendment (see Draft EIR Figures 3 -3, Aerial Photograph, and 3 -4, Airport Area Planning Designations). There are other parcels with the same land use designation (Mixed -Use Horizontal -2 [MU -H2]) as the proposed project site. However, these parcels are developed, privately owned, and currently occupied. Also, as described in Section 4.0 of the Draft EIR, Environmental Setting, an application for development of the adjacent Koll Center site has been filed with the City. There are no vacant parcels within the Airport Area of sufficient size to accommodate a project similar to Uptown Newport. In general, any development of similar size and type proposed by the project within the Airport Area could experience ongoing operational impacts similar to the proposed project, including air quality (regional), greenhouse gas emissions, population /housing, public services, recreation, transportation /traffic, and utilities /service systems. Demolition impacts, including air quality, greenhouse gas (GHG) emissions, and noise, therefore, could likely not be avoided. However, without a detailed analysis, site - specific impacts for an alternate Airport Area site, including aesthetics, biological resources, cultural resources, geology /soils, hydrology /water quality, and hazards /hazardous materials, cannot be directly compared. With the exception of hazards /hazardous materials, these impacts would be anticipated to be similar to the project site. An alternate location within the Airport Area would likely eliminate the unique impacts associated with the development of the TowerJazz site and inherent incompatibility of the semiconductor manufacturing facility with the interim residential use for Phase 1 of the proposed project. The significant impacts associated with this adjacency, however, including operational noise and potential hazards, are less than significant for the proposed project upon mitigation. Development of the proposed project at another location within the Airport Area would not eliminate the significant construction - related air quality and noise impacts or significant land use impact pending a consistency determination of the project with the AELUP. For these reasons, the City determined that an alternative development site for the proposed project would not be a feasible alternative (CEQA Guidelines Section 15126.6[f][2][B]). 2. Optional Project Phasing Alternative This alternative was considered for its potential to reduce or eliminate significant impacts related to the concurrent operation of the TowerJazz facility adjacent to Phase 1 residences that would occur under the proposed project. Under this alternative, demolition of the Half Dome building and Phase 1 site improvements and building construction would proceed as currently defined for the proposed project. Building occupancy of Phase 1 residential structures, however, would be postponed until expiration of the TowerJazz lease and cessation of the semiconductor manufacturing operation. 55 Planning Commission Resolution No. Page 51 of 103 Under the proposed project, it is anticipated that the earliest residential units in Phase 1 could be constructed and ready for occupancy as early as mid -2015 (the entire phase is anticipated to be complete by 2018). Under the Optional Project Phasing alternative, no residences could be occupied until at least 2017; if TowerJazz renewed the lease, Phase 1 residences could not be occupied until 2027. This alternative, however, would allow the retail operations in Phase 1 (11,500 square feet, including an upscale restaurant) to commence operation. The Optional Phasing Alternative would reduce the following project - related significant impacts associated with the adjacency of occupied residential uses and the TowerJazz operation: operational noise and hazards (potential chemical release). Under the proposed project, this interim condition could exist for 6 to 12 years assuming occupancy of some Phase 1 units as early as mid -2015 and extension of the TowerJazz lease to 2027. This alternative would not reduce the construction - related impacts of Phase 2 demolition and development on Phase 1 residents, nor potential hazards related to building demolition of final Phase 2 area, since these activities would occur after Phase 1 occupancy. Moreover, it would not reduce or eliminate the potentially significant vibration impact of Phase 1 construction on sensitive TowerJazz equipment. This alternative would not modify the impact significance of construction - related air quality or noise impacts, or the significant land use impact (AELUP consistency finding). Although this alternative has the potential to eliminate significant impacts related to the adjacency of Phase 1 residents during TowerJazz operation, it was rejected for further analysis. Both the impacts that would be eliminated under this alternative would be mitigated to less than significant under the proposed project. Although Phase 1 residential units could be constructed, occupancy would be postponed until 2017 under the best case for this alternative (up to 2 years for some of the units) and potentially until 2027 under the lease option (at least 9 years for all of Phase 1 residents and up to 12 years for some units). It would not be economically feasible for the project applicant to incur the development cost for this extended period of time without a return on investment. Moreover, property and building maintenance costs would be incurred while the residential buildings remained vacant. And finally, vacant buildings would not be desirable for the City and may be subject to vandalism and /or other criminal activity. B. Alternatives Selected for Analysis Based on the criteria listed above, the following three alternatives have been determined to represent a reasonable range of alternatives that could potentially attain most of the basic objectives of the project and have the potential to avoid or substantially lessen one or more of the significant effects of the project. These alternatives are analyzed in detail in the following sections. • Hotel /Office /Commercial Alternative • Office /Commercial /Residential Alternative S0 Planning Commission Resolution No. Page 52 of 103 • Reduced Density Alternative Additionally, this section analyzes the No Project Alternative, as required by CEQA An EIR must identify an "environmentally superior" alternative, and where the No Project Alternative is identified as environmentally superior, the EIR is required to identify as environmentally superior an alternative from among the others evaluated. Each alternative's environmental impacts are compared to the proposed project and determined to be environmentally superior, neutral, or inferior. However, only significant and unavoidable impacts are used in making the final determination of whether an alternative is environmentally superior or inferior to the proposed project. Only the impacts involving air quality (short -term construction related), land use and planning, and noise (short -term construction related) were found to be significant and unavoidable. Section 7.8 identifies the environmentally superior alternative. The proposed project is analyzed in detail in Chapter 5 of the DEIR 1. Alternatives Comparison Table 2, Statistical Summary Comparison, identifies information regarding dwelling units, proposed land uses, and population and employment projections, and also provides the jobs - to- housing ratio for the proposed project and each of the alternatives. 57 Planning Commission Resolution No. Page 53 of 103 Table 2 Statistical Summary Comaarison 1 Assumes 2.19 persons per household as determined in 2010 Census for Newport Beach (Census 2012). 2 Assumes 450 square feet per employee, per SCAG's Employment Density Study Summary Report (2001). 3 Assumes 352 square feet per employee for low -rise office uses, per SCAG's Employment Density Study Summary Report (2001). 4 Assumes 1,804 square feet per employee, per SCAG's Employment Density Study Summary Report (2001). Since SCAG's report does not provide a square foot per hotel employee rate for Orange County, the regional rate of 1,804 was used to develop the number of employees for this alternative. 5 Jobs -to- housing ratio is based on SCAG projections for the City of Newport Beach in 2035, similar to what was analyzed for the proposed project in Section 5.11, Population and Housing. For each of the alternatives analyzed herein, with the exception of the No Project Alternative, the following components /elements would be similar to the proposed project: • Development would be consistent with the City's General Plan and would require the preparation of a regulatory plan (i.e., Planned Community Development Plan) and related implementation plans (Phasing Plan and Design Guidelines). • Development would occur in two primary phases, and the phase boundaries would be the similar to the boundaries shown in Figure 3 -6 of the Draft EIR, Site Plan and Phasing Plan. • Operation of the TowerJazz facility would continue as an interim use after the development of Phase 1 and would be demolished under Phase 2. • Phase 1 would commence in 2014 and be completed by 2018. Timing for Phase 2 would be contingent on the existing lease of the Tower-Jazz building, M Proposed Project No Project Alternative Hotel /Office/ Commercial Alternative Office /Commerciall Residential Alternative Reduced Density Alternative Land Use Statistics Dwelling Units 1,244 DU 830 DU 561 DU Commercial /Retail 11,500 sf — 20,000 sf 7,000 sf 11,500 sf Office — 126,675 sf 160,000 sf 100,000 sf — Industrial — 311,452 sf 0 0 0 Hotel (Rooms) — — 174 — — Park Space 2.05 ac — 1.52 ac 1.40 ac 2.05 ac Population' 1 2,724 1 1,818 1,229 Employment Commerciale 26 — 44 16 26 Office 3 — 135 455 284 — Hotel" — — 96 — — Industrial — 3,000 Total 26 3,135 595 300 26 Jobs -to- Housing Ratio 1.78 1.91 1.85 1.88 1.81 1 Assumes 2.19 persons per household as determined in 2010 Census for Newport Beach (Census 2012). 2 Assumes 450 square feet per employee, per SCAG's Employment Density Study Summary Report (2001). 3 Assumes 352 square feet per employee for low -rise office uses, per SCAG's Employment Density Study Summary Report (2001). 4 Assumes 1,804 square feet per employee, per SCAG's Employment Density Study Summary Report (2001). Since SCAG's report does not provide a square foot per hotel employee rate for Orange County, the regional rate of 1,804 was used to develop the number of employees for this alternative. 5 Jobs -to- housing ratio is based on SCAG projections for the City of Newport Beach in 2035, similar to what was analyzed for the proposed project in Section 5.11, Population and Housing. For each of the alternatives analyzed herein, with the exception of the No Project Alternative, the following components /elements would be similar to the proposed project: • Development would be consistent with the City's General Plan and would require the preparation of a regulatory plan (i.e., Planned Community Development Plan) and related implementation plans (Phasing Plan and Design Guidelines). • Development would occur in two primary phases, and the phase boundaries would be the similar to the boundaries shown in Figure 3 -6 of the Draft EIR, Site Plan and Phasing Plan. • Operation of the TowerJazz facility would continue as an interim use after the development of Phase 1 and would be demolished under Phase 2. • Phase 1 would commence in 2014 and be completed by 2018. Timing for Phase 2 would be contingent on the existing lease of the Tower-Jazz building, M Planning Commission Resolution No. Page 54 of 103 which is currently set to expire in March 2017, but could be extended to as late as March 2027. • The Southern California Edison (SCE) substation would remain during the initial operation of Phase 1 to serve the electricity needs of the TowerJazz facility, and would be demolished in Phase 2. • The overall project acreage (25.05 acres) and acreage by phase (12.29 for Phase 1 and 12.76 for Phase 2) would remain the same. • The overall land use mix would be trip neutral as required by the City's General Plan (by definition, projects consistent with allowed uses under the General Plan would be trip neutral). • Parking would include a mix of surface and structure parking (subterranean and above - ground). • Vehicular and pedestrian site access would be similar. • Building heights would be regulated by the Federal Aviation Administration (FAA) regulations and standards outlined in the required regulatory plan. Table 3 provides a comparison of the vehicle trips that would be generated by the proposed project and each of the alternatives. Table 3 Trip Generation Comparison a) No Project Alternative Description: Under the No Project Alternative, no development would occur on the project site, the existing buildings and structures onsite (TowerJazz building, Half Dome building, and Southern California Edison substation) would remain and not be demolished, and the TowerJazz facility would continue operating. All other site improvements (e.g., parking areas, landscaping, sidewalks) would also remain in their existing condition. It is assumed for this alternative that the TowerJazz facility would remain onsite and operate indefinitely. �9 Trip Generation Estimates AM Peak Hour PM Peak Hour Daily In Out Total In Out Total Proposed Project 9,033 134 511 644 537 292 829 No Project 747 90 12 102 15 88 102 Hotel /Office /Commercial Alternative 3,983 289 76 365 126 278 404 Commercial /Office /Residential Alternative 6,805 223 362 584 362 311 672 Reduced Density Alternative 4,139 64 233 297 236 135 370 a) No Project Alternative Description: Under the No Project Alternative, no development would occur on the project site, the existing buildings and structures onsite (TowerJazz building, Half Dome building, and Southern California Edison substation) would remain and not be demolished, and the TowerJazz facility would continue operating. All other site improvements (e.g., parking areas, landscaping, sidewalks) would also remain in their existing condition. It is assumed for this alternative that the TowerJazz facility would remain onsite and operate indefinitely. �9 Planning Commission Resolution No. Page 55 of 103 Environmental Effects: A full discussion of the No Project Alternative's environmental impacts as compared to the proposed project is set forth in Section 7.4.1 of the Draft EIR, which is hereby incorporated by reference. In comparison to the proposed project, the No Project Alternative would reduce impacts to air quality, biological resources, cultural resources, geology and soils, hazards and hazardous materials, land use and planning, noise, and vibration, public services, and recreation. This alternative would eliminate the significant unavoidable construction - related impacts for air quality and noise, as well as the significant, unavoidable land use and planning impact related to the inconsistency finding by AELUP for the Uptown Newport project. Aesthetic and transportation and traffic impacts under this alternative would be similar to the proposed project. GHG impacts would be substantially greater for the No Project Alternative, and population /housing and utilities /services impacts would also be greater than the proposed project. Overall, the No Project Alternative would have less environmental impacts than the proposed project and would eliminate all its significant, unavoidable impacts. Ability to Achieve Project Objectives: The No Project Alternative would not achieve any of the objectives of the proposed project, because it would not implement the goals and objectives that the City's General Plan and ICDP have established for the project site. The General Plan's policies for the Airport Area and the ICDP call for the orderly evolution of this area from a single - purposed business park to a mixed -use district with cohesive residential villages integrated within the existing fabric of the office, industrial, retail, and airport- related businesses. This alternative would not provide housing in close proximity to jobs and supporting services, with pedestrian- oriented amenities that facilitate walking and enhance livability. Feasibility: Since the No Project Alternative would allow the existing land uses (TowerJazz facility, Half Dome building, and Southern California Edison substation) to continue operating on the project site, the feasibility of this alternative would rely on the economic feasibility of indefinite operation of the TowerJazz manufacturing operation. No changes to the existing conditions would occur, and all operations would continue indefinitely. Finding: In comparison to the proposed project, the No Project Alternative would reduce impacts to air quality, biological resources, cultural resources, geology and soils, hazards and hazardous materials, land use and planning, noise and vibration, public services, and recreation. This alternative would eliminate the significant unavoidable construction - related impacts for air quality and noise, as well as the significant, unavoidable land use and planning impact related to the inconsistency finding by AELUP for the Uptown Newport project. Aesthetic and transportation and traffic impacts under this alternative would be similar to the proposed project. GHG impacts would be substantially greater for the No Project Alternative, and population /housing and utilities /services impacts would also be greater than the proposed project. From a policy perspective, this alternative would fail to provide the City with additional housing opportunities, including affordable housing, which is an identified need in the City's Housing Element. It would also fail to implement the Airport Business Area Integrated Conceptual Development Plan (]CDP), which calls for the redevelopment of the project with residential villages integrated with the existing fabric of the office, industrial, retail, and airport- related businesses. Overall, the No Project Alternative W Planning Commission Resolution No. Page 56 of 103 would have fewer environmental impacts than the proposed project and would eliminate all its significant, unavoidable impacts, making it the environmentally superior alternative. However, since the No Project Alternative fails to meet project objectives, provide affordable housing, and implement the ICDP, it has been rejected by the City in favor of the proposed project. b) Hotel /Office /Commercial Alternative Description: This alternative was selected for its potential to eliminate impacts associated with the adjacency of residential uses to the operating TowerJazz manufacturing facility during Phase 1. Land use incompatibility concerns associated with the proximity of residential uses to TowerJazz include noise and hazards. Under this alternative, Phase 1 would include up to 174 hotel rooms (including conference, banquet facility, etc.), and Phase 2 would provide up to 160,000 square feet of office uses and 20,000 square feet of commercial uses, as shown in Table 2, Statistical Summary Comparison. This alternative could potentially include subterranean parking for one or more of the uses. Phase 1 The Half Dome building and other associated site improvements, including parking areas, landscaped and common areas, and other hardscape improvements, would be demolished. Upon demolition, this phase would include the development of up to 174 hotel rooms (including conference, banquet facility, etc.) and other associated site improvements, including parking areas, drive aisles, walkways, landscaping, and common areas. The hotel rooms could be accommodated within low- and midrise buildings with a maximum building height of 75 feet. Phase 2 Under Phase 2, the TowerJazz building, northern parking area, and other remaining site improvements would be demolished to develop 160,000 square feet of office uses and 20,000 square feet of commercial uses and other associated site improvements, including parking areas, drive aisles, walkways, landscaping, and common areas. The office and commercial uses could be accommodated within low- and midrise buildings with a maximum building height of 75 feet. Environmental Effects: A full discussion of the Hotel /Office /Commercial Alternative's environmental impacts compared to the proposed project's is set forth in Section 7.5.2 of the Draft EIR, which is hereby incorporated by reference. In comparison to the proposed project, the Hotel /Office /Commercial Alternative would reduce impacts to air quality, GHG, hazards, noise, public services, recreation, and utilities and services. As shown in Table 3, this alternative would substantially reduce traffic trips, reducing average daily trips by approximately 56 percent in comparison to the proposed project. In comparison to the proposed project, however, peak trips would contribute to the existing peak trip patterns (AM peak into site, PM peak departure), so overall traffic impacts would be similar to the proposed project. It would comply with CFC Section 2704.1.1 (Amendment), since it would not locate residents adjacent to extremely dangerous chemicals and thus would eliminate a potentially significant impact associated with the project as proposed. This impact, however, would be 01 Planning Commission Resolution No. Page 57 of 103 mitigated to less than significant, so this alternative would not eliminate a significant, unavoidable impact. Land use and planning, and population and housing impacts for this alternative would be greater than for the proposed project; aesthetics, biological resource, cultural resources, geology and soils, and hydrology /water quality impacts would be similar. This alternative would not eliminate any of the significant, unavoidable impacts associated with the proposed project. Ability to Achieve Project Objectives: With the exception of the provision of beneficial site improvements, including implementing a WQMP, the Hotel /Office /Commercial Alternative would not achieve any of the key objectives of the proposed project. It would not implement the goals and objectives that the City's General Plan and ICDP have established for the project site. The General Plan's policies for the Airport Area and the ICDP call for the orderly evolution of this area from a single - purpose business park to a mixed -use district with cohesive residential villages integrated with the existing fabric of the office, industrial, retail, and airport- related businesses. This alternative would not provide housing in close proximity to jobs and supporting services, with pedestrian- oriented amenities that facilitate walking and enhance livability. Feasibility: Although the Hotel /Office /Commercial Alternative would be physically feasible, it may not be economically feasible. It is uncertain whether this alternative would yield a reasonable return on investment. Although statistics are not readily available for the demand for hotel units, information does indicate a depressed market demand for office use in the Orange County airport area as of the 4th quarter of 2011 (CBRE 2011). As of that quarter, the office vacancy rate was 24.9 percent, and it was estimated that it would take 8.5 years to absorb all of the available and under - construction Class A office space based on an annual absorption rate (2011) of 769,204 square feet for the Greater Airport area. Office use by Phase 2 of the project could be feasible if the economy picks up. If the office vacancy rate drops to approximately 7 percent, the existing office availability (including under construction) could be absorbed in approximately 4.2 years, and new office uses could be marketable. With a 5.7 percent vacancy rate, the retail market is better than the office market, but still depressed. Finding: This alternative would only meet one of the eight project objectives, but it would reduce environmental impacts to air quality, GHG, hazards, noise, public services, recreation, and utilities and services. Also, because it does not include the development of residential land uses, it would comply with CFC Section 2704.1.1 (Amendment) regarding the location of residents adjacent to extremely dangerous chemicals (a potentially significant impact associated with the proposed project), and it would be consistent with the AELUP (a significant impact of the proposed project since the Airport Land Use Commission did not grant a consistency finding). It would not eliminate any of the significant, unavoidable impacts associated the proposed project. Moreover, it would not provide affordable housing, an identified need in the City's Housing Element, it would not implement the ICDP, and it may be economically infeasible. For these reasons, the City finds that the proposed project is preferred over this alternative. 02 Planning Commission Resolution No. Page 58 of 103 c) Office /Commercial /Residential Alternative Description: This alternative was selected for its potential to eliminate impacts associated with the adjacency of residential uses to the operating TowerJazz manufacturing facility during Phase 1 while still providing residential uses in Phase 2. Land use incompatibility concerns associated with the proximity of residential uses to TowerJazz include noise and hazards. Other impacts that could potentially be reduced by this alternative, although not determined significant for the proposed project, were anticipated to be aesthetics, air quality, and health risk (TowerJazz air emissions). This alternative would include the development of office, commercial, and residential uses. More specifically, Phase 1 would include up to 100,000 square feet of office uses and 7,000 square feet of commercial uses, and Phase 2 would include up to 830 dwelling units, as shown in Table 2, Statistical Summary Comparison. This alternative could potentially include subterranean parking for one or more of the uses. Phase 1 Phase 1 would include demolition of the Half Dome building and other associated site improvements, including parking areas, landscaped and common areas, and other hardscape improvements. Upon demolition, this phase would include the development of up to 100,000 square feet of office uses and 7,000 square feet of commercial uses and other associated site improvements, including parking areas, drive aisles, walkways, landscaping, and common areas. The office and commercial uses could be accommodated within low- and midrise buildings with a maximum building height of 75 feet. The commercial land use has been situated with frontage on Jamboree Road and might encompass restaurant uses as does the proposed project. Phase 2 Under Phase 2, the TowerJazz building, northern parking area, and other remaining site improvements would be demolished to develop up to 830 dwelling units and other associated site improvements, including parking areas, drive aisles, walkways, landscaping, and common areas. As with the proposed project, a variety of housing developments could be anticipated under this alternative. Residential product types could be for sale and /or rent —a mix of apartments, townhouses, and condominiums. Residential buildings may include low - rise rowhouses and 4- and 5 -story apartments or condominiums featuring a range of floor plan sizes. Mid- to high -rise buildings are also envisioned. Midrise buildings would not exceed 75 feet in height, and high -rise buildings would not exceed 150 feet in height. Phase 2 would also include a 1.02 -acre neighborhood park similar to proposed project. The park would be privately maintained and publicly accessible. In addition to the neighborhood park, public open space areas, private open space area, and ancillary amenities would be provided to serve residents and visitors, and paseo and walkway connections would be provided onsite and to surrounding areas. (03 Planning Commission Resolution No. Page 59 of 103 Environmental Effects: A full discussion of the Office /Commercial /Residential's environmental impacts compared to the proposed project's is set forth in Section 7.6.1 of the Draft EIR, which is hereby incorporated by reference. In comparison to the proposed project, the Office /Commercial /Residential Alternative would reduce impacts to air quality, GHG, hazards, noise, public services, recreation, and utilities and services. As shown in Table 3, traffic trips would be reduced by approximately 25 percent in comparison to the proposed project. Since residential uses would not be introduced until Phase 2 after the TowerJazz facility is removed, it would comply with CFC Section 2704.1.1 (Amendment); that is, it would not locate residents adjacent to extremely dangerous chemicals. This would eliminate a potentially significant impact associated with the project as proposed. This impact, however, would be mitigated to less than significant, so it would not eliminate a significant, unavoidable impact. Land use and planning and population and housing impacts for this alternative would be greater than for the proposed project, and aesthetics, biological resource, cultural resources, geology and soils, and hydrology /water quality impacts would be similar. Ability to Achieve Project Objectives: With the introduction of 830 residential units as part of a mixed -use residential village, this alternative would meet several of the project's objectives. It would be consistent with several of the goals and policies of the General Plan for the Airport Area, although it would not be consistent with the ICDP approved for the site, which provides for the development of 1,244 residential units. This alternative would provide 7,000 square feet of commercial use (or potentially more) and therefore achieve the objective to provide retail commercial to serve local residents, businesses, and visitors. Although less than the proposed project, this alternative would provide housing near jobs and supporting services, with pedestrian- oriented amenities, and would provide the phased transition from the existing use to the office, commercial, and residential uses. It would also provide several of the beneficial impacts of the proposed project, including implementing a WQMP. Feasibility: As with the Hotel /Office /Commercial Alternative, the Office /Commercial /Residential alternative would be physically feasible but it may not be economically feasible. It is uncertain whether this alternative would be a viable project that could yield a reasonable return on investment. As discussed in Section 6.13.1.b., there is currently a high vacancy rate for offices (24.9 percent). It is highly unlikely that office use in Phase 1 of this alternative would be viable. It is more likely that the 7,000 square feet of commercial use could be absorbed under this alternative. Finding: The Office /Commercial /Residential Alternative would reduce impacts to air quality, GHG, hazards, noise, traffic, public services, recreation, and utilities and services, and it would meet several of the project's objectives. However, this alternative would increase the land use and planning and population and housing impacts when compared to the proposed project. Based on the ALUC's inconsistency finding for the proposed project, it is anticipated that this alternative would also be inconsistent with the AELUP since it would be place residential uses within the AELUP planning area. It would also be inconsistent with the ICDP, since it does not provide 1,244 units, unlike the proposed project. For these reasons, the City finds that the proposed project is preferred over this alternative. =1 Planning Commission Resolution No. Page 60 of 103 d) Reduced Intensity Alternative Description: This alternative evaluates the minimum number of residential units that could be developed on the project site and still comply with the 30 dwelling units /acre minimum density prescribed for the site in the City's General Plan and the ICDP. Based on an estimated, net developable 12.34 acres for the site, 561 units could be developed: 260 dwelling units in Phase 1 and 301 in Phase 2. As with the proposed project, this alternative is assumed to include 11,500 square feet of commercial use in Phase 1. This alternative was evaluated for its potential to reduce overall long -term operational project impacts due to the substantial reduction in housing units. This alternative was also designed to provide a larger open -space buffer between the TowerJazz facility and Phase 1 to evaluate the potential to minimize compatibility impacts in Phase 1 of the proposed project related to the proximity of the TowerJazz facility and residences. As with the proposed project, a variety of housing developments could be anticipated under this alternative. Residential product types would be for sale and rent with a mix of apartments, townhouses, and condominiums. Since the number of units would be reduced by 55 percent in comparison to the proposed project, both the overall footprint and height of residential buildings could be reduced in comparison to the proposed project. Residential buildings would include low -rise townhouses and 4- and 5 -story apartments or condominiums featuring a range of floor plan sizes. Mid- to high -rise buildings are also envisioned at a maximum height of 75 feet. This alternative would not include any high -rise towers up to 150 feet, as proposed under the proposed project. The commercial component would include neighborhood - serving retail and services. As with the proposed project, it is assumed that this alternative would include some improved park space that would be available for public use. With the reduction in housing units, it is anticipated that open space acreage could be increased relative to the proposed project (as shown in the conceptual plan, Figure 7 -3 of the Draft EIR). As shown in the conceptual layout, approximately eight acres may be available for open space uses. It has not been defined whether the entire open space area would be maintained privately and be available to the public. In addition, public open space areas, private open space areas, and ancillary amenities would be provided to serve residents and visitors, and paseo and walkway connections would be provided onsite and to surrounding areas. Phase 1 Phase 1 would include demolition of the Half Dome building and other associated site improvements, including parking areas, landscaped and common areas, and other hardscape improvements. Upon demolition, this phase would include the development of up to 260 dwelling units and other associated site improvements, including parking areas, drive aisles, walkways, landscaping, and common areas. The dwelling units could be accommodated in low -, mid- or high -rise buildings or a mix of these building types. Phase 1 would also include up to 11,500 square feet of neighborhood- serving commercial uses and likely improvements to a portion of the open space to serve as a neighborhood park, available also for public use. 05 Planning Commission Resolution No. Page 61 of 103 Phase 2 Under Phase 2, the TowerJazz building, northern parking area, and other remaining site improvements would be demolished to develop up to 301 dwelling units and other associated site improvements, including parking areas, drive aisles, walkways, landscaping, and common areas. The dwelling units could be accommodated within low -, mid- or high -rise buildings, or a mix of these building types. Phase 2 would also include open space area that could accommodate a neighborhood park, which would be available to the public. Environmental Effects: In comparison to the proposed project, the Reduced Density Alternative would reduce impacts to air quality, GHG, hazards, noise, public services, recreation, traffic, and utilities and services. Average daily traffic trips would be reduced approximately 54 percent (see Table 3). Since residential uses would still be included in Phase 1, it would not eliminate the significant impacts associated with resident incompatibility with adjacency to the TowerJazz facility during an interim period. It would reduce these impacts, however, because of both the reduction in units and increased distance to the TowerJazz facility. Impacts to aesthetics, biological resources, cultural resources, hydrology and water quality, and land use and planning would be similar to the proposed project. It would not eliminate any significant impacts of the proposed project, and impacts to population and housing would be considered greater than the proposed project. Ability to Achieve Project Objectives: With the introduction of 561 residential units and 11,500 square feet of commercial uses as part of a mixed -use residential village, this alternative would meet several of the project's objectives. It would be consistent with several of the goals and policies of the General Plan for the Airport Area, and it would be consistent with the minimum density of 30 du /acres prescribed by the ICDP. It would provide 11,500 square feet commercial use (or potentially more), and therefore achieve the objective to provide retail commercial to serve local residents, businesses, and visitors. Although fewer than the proposed project, this alternative would provide housing near jobs, supporting services, and pedestrian - oriented amenities and would provide the phased transition from the existing use to the office and residential uses. It would also provide several of the beneficial impacts of the proposed project, including implementing a WQMP. It is unlikely, however, that this alternative would be a viable project that could yield a reasonable return on investment. The project would only develop 260 dwelling units in the first phase and overall would include over eight acres in open space, which would not provide a direct return on investment. It is uncertain whether the return from Phase 1 could support the development costs for Phase 2 or that development returns could support the infrastructure and improvements costs required for the overall project. Feasibility: This alternative is considered physically and environmentally feasible but may not be economically feasible. The project would only develop 260 dwelling units in the first phase and overall would include over eight acres in open space, which would not provide a direct return on investment. It is uncertain whether the return from Phase 1 could support the development costs for Phase 2 or that development returns could support the infrastructure and improvements costs required for the overall project. Finding: While the Reduced Intensity Alternative would lessen some of the environmental effects of the proposed project, it would not eliminate any significant and unavoidable MM Planning Commission Resolution No. Page 62 of 103 impacts. In addition, as with the proposed project, it is anticipated that it would be inconsistent with the AELUP, since it would be placing residential land uses within the AELUP planning area. For these reasons, the City finds that the proposed project is preferred over this alternative. 07 Planning Commission Resolution No. Page 63 of 103 B. STATEMENT OF OVERRIDING CONSIDERATIONS INTRODUCTION The City is the Lead Agency under CEQA for preparation, review, and certification of the Final EIR for the Uptown Newport Project. As the Lead Agency, the City is also responsible for determining the potential environmental impacts of the proposed action and which of those impacts are significant, and which can be mitigated through imposition of mitigation measures to avoid or minimize those impacts to a level of less than significant. CEQA then requires the Lead Agency to balance the benefits of a proposed action against its significant unavoidable adverse environmental impacts in determining whether or not to approve the proposed Project. In making this determination the City is guided by State CEQA Guidelines Section 15093 which provides as follows: CEQA requires the decision - making agency to balance, as applicable, the economic, legal, social, technological, or other benefits, including region -wide or statewide environmental benefits, of a proposed project against its unavoidable environmental risks when determining whether to approve the project. If the specific economic, legal, social, technological, or other benefits, including region -wide or statewide environmental benefits, of a proposal (sic) project outweigh the unavoidable adverse environmental effects, the adverse environmental effects may be considered "acceptable." When the lead agency approves a project which will result in the occurrence of significant effects which are identified in the final EIR but are not avoided or substantially lessened, the agency shall state in writing the specific reasons to support its action based on the final EIR and /or other information in the record. The statement of overriding considerations shall be supported by substantial evidence in the record. If an agency makes a statement of overriding considerations, the statement should be included in the record of the project approval and should be mentioned in the notice of determination. This statement does not substitute for, and shall be in addition to, findings required pursuant to Section 15091. In addition, Public Resources Code Section 21081(b) requires that where a public agency finds that specific economic, legal, social, technological, or other considerations, including considerations for the provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or alternatives identified in an EIR and thereby leave significant unavoidable effects, the public agency must also find that overriding economic, legal, social, technological, or other benefits of the project outweigh the significant effects of the project. Pursuant to Public Resources Code Section 21081(b) and the State CEQA Guidelines Section 15093, the City has balanced the benefits of the proposed Project against the following unavoidable adverse impacts associated with the proposed Project and has adopted all feasible mitigation measures with respect to these impacts. The City also has IN Planning Commission Resolution No. Page 64 of 103 examined alternatives to the proposed Project, none of which both meet the Project objectives and is environmentally preferable to the proposed Project for the reasons discussed in the Findings and Facts in Support of Findings. The Newport City of Beach City Council, the Lead Agency for this Project, and having reviewed the Final EIR for the Uptown Newport Project, and reviewed all written materials within the City's public record and heard all oral testimony presented at public hearings, adopts this Statement of Overriding Considerations, which has balanced the benefits of the Project against its significant unavoidable adverse environmental impacts in reaching its decision to approve the Project. Significant Unavoidable Adverse Environmental Impacts Although most potential Project impacts have been substantially avoided or mitigated, as described in the Findings and Facts in Support of Findings, there remain some Project impacts for which complete mitigation is not feasible. For some impacts, mitigation measures were identified and adopted by the Lead Agency, however, even with implementation of the measures, the City finds that the impact cannot be reduced to a level of less than significant. The impacts and alternatives are described below and were also addressed in the Findings. The EIR identified the following unavoidable adverse impacts of the proposed Project Air Quality Phase 1 EIR Impact 5.2 -2: Short -term construction emissions generated by the Uptown Newport project would result in oxides of nitrogen (NOx) emissions that exceed the South Coast Air Quality Management District's (SCAQMD) regional significance thresholds during site preparation activities (year 2014 for Phase 1 and year 2017 and 2018 for Phase 2) and when construction activities of various phases overlap (year 2017 and 2018) and would cumulatively contribute to the nonattainment designations of the South Coast Air Basin (SoCAB). Of the eight years of construction, project - related construction activities would only exceed SCAQMD's threshold for three of those years because significant off -road equipment use and haul trucks are not necessary during vertical building construction. Mitigation Measure 2 -1 would reduce NOx generated by exhaust. Use of newer construction equipment would reduce construction emissions onsite. However, onsite emissions in addition to offsite emissions generated by haul trucks would generate substantial quantities of NOx and would continue to exceed SCAQMD's regional significance threshold. Therefore, this impact would remain significant and unavoidable. Phase 2 Same significant and unavoidable impact for Phase 1 applies to Phase 2 Mo Planning Commission Resolution No. Page 65 of 103 Land Use Phase 1 EIR Impact 5.9 -3: The Airport Land Use commission (ALUC) considered the Uptown Newport project at its hearing held on October 18, 2012 and voted to find the project inconsistent with the Commission's Airport Environs Land use Plan (AELUP) for John Wayne Airport (JWA) and AELUP for Heliports. Project approval would require a 2/3 vote by the City Council to override this finding and this impact constitutes a significant, unavoidable impact of the project. No mitigation measures are available that would reduce this impact to less than significant. Therefore, this impact would remain significant and unavoidable. Phase 2 Same significant and unavoidable impact for Phase 1 applies to Phase 2. Noise Phase 1 EIR Impact 5.10 -6: During Phase 1 development, construction activity would have the potential to cause annoyance and interfere with activities of occupants at the nearby office buildings adjacent to the project site and at the TowerJazz facility facing the construction area. Because of the height of the office buildings adjacent to the project site, sound walls to block the line of sight between construction activities and nearby offices would be infeasible. Despite the application of mitigation measures, occupants at the offices adjacent to the project site would be temporarily exposed to elevated noise levels during construction activities, and this impact would remain significant and unavoidable. Phase 2 EIR Impact 5.10 -6: The operation of heavy construction equipment during construction of Phase 2 would result in high noise levels at the residential buildings constructed under Phase 1 and at office buildings adjacent to the project site. Because of the height of these buildings, sound walls to block the line of sight between construction activities and nearby residents and office occupants would be infeasible. Despite the application of mitigation measures, nearby noise - sensitive uses would be temporarily exposed to elevated noise levels during construction activities, and this would remain significant and unavoidable. In addition, the EIR evaluated four alternatives to the Project and analyzed whether these alternatives could avoid or substantially lessen the unavoidable environmental impacts of the proposed Project. While some of the alternatives could lessen or avoid some of the unavoidable impacts of the proposed Project, some of the alternatives also resulted in different and in some cases, increased environmental impacts, consequently, for the reasons set forth in Section 6 of the Facts and Findings, none of the alternatives were determined to be feasible: No Project Alternative (Continuation of Existing Land Uses). 70 Planning Commission Resolution No. Page 66 of 103 • Hotel /Office /Commercial Alternative • Office /Commercial /Residential Alternative • Reduced Density Alternative The City, after balancing the specific economic, legal, social, technological, and other benefits including region -wide or statewide environmental benefits, of the proposed Project, has determined that the unavoidable adverse environmental impacts identified above may be considered acceptable due to the following specific considerations which outweigh the unavoidable, adverse environmental impacts of the proposed Project, in accordance with CEQA Section 21081(b) and State CEQA Guideline Section 15093. 1. Park land dedication and improvements consistent with applicable State law and Municipal Code provisions, including the dedication and improvement of over two (2) acres of on -site public parkland. 2. Perpetual annual private maintenance of over two (2) acres of on -site public parks. 3. Improvement of private open space, including paseos and urban plazas that will be accessible to the public and connect the Project and surrounding properties to promote connectivity and pedestrian travel in the Airport Area. 4. Remediation of soil and groundwater contamination on the Property that has existed on- site since the mid- 1980's. 5. Reduction in greenhouse gases generated within the Airport Area 6. Reduction in electric, gas, water and sewer utility usage through the redevelopment of an existing industrial manufacturing site into a residential mixed use project. 7. Reduction of urban runoff volumes and implementation of stormwater runoff water quality facilities that will improve the quality of stormwater runoff entering the Newport Back Bay. 8. Construction of affordable housing units within the Project that will provide affordable housing opportunities to Newport Beach residents. 9. Payment of a public benefit fee per residential dwelling unit developed as part of the Project, including an annual adjustment to the public benefit fee based on the Consumer Price Index ( "CPI "). 71 Planning Commission Resolution No. Page 67 of 103 EXHIBIT D PLANNED COMMUNITY DEVELOPMENT PLAN AMENDMENT NO. PD2011 -003 Consists of: • Revised Planned Community Development Plan #15 (Koll Center Planned Community) showing the removal (in °*rte'-^ Ai, ) of Industrial Site 1 (the Property) with all its references, allowable land uses, and general development regulations including all written text, maps and exhibits. • Inclusion of a footnote to indicate the removal of Industrial Site 1 and all reference to it by Ordinance No. of the City Council on • No other change to the Koll Center Planned Community are recommended and it shall remain in full force and effect. 72 PLANNED COMMUNITY DEVELOPMENT STANDARDS For Koll Center Newport Ordinance No. 1449, adopted by the City of Newport Beach August 14, 1972 (Amendment No. 313) Original draft May 5, 1972 Amendment (1) August 14,1972 Amendment (2) August 14, 1972 Amendment (3) August 2, 1973 Amendment (4) February 7, 1974 Amendment (5) June 10, 1974 Amendment (6) May 15, 1975 Amendment (7) September 8, 1975 Amendment (8) June 29, 1976 Amendment (9) January 10, 1977 Amendment (10) July 11, 1978 Amendment (11) August 28, 1978 Amendment (12) October l9, 1978 Amendment (13) November 10, 1980 Amendment (14) March 23, 1981 Amendment (15) October24, 1984 Amendment (16) May l4, 1984 Amendment (17) December 9, 1985 Amendment (18) July 14, 1986 Amendment (19) March 23, 1987 Amendment (20) July 27, 1987 Amendment(21) June 12, 1989 Amendment (22) April 25, 1994 Amendment (23) October 9, 1995 Amendment (24) February 23, 1998 Amendment (25) August 10, 1998 Amendment (26) January 11, 2000 Amendment (27) January 25, 2000 Amendment (28) August 9, 2005 Ordinance No. 2006 -19 (29) July 25, 2006 Ordinance No. 2006 -21 (30) October 24, 2006 Ordinance No. 2011 -3(31) January 25,2011 Ordinance No. 2011 -8(32) March 8, 201 I Amendment (33) .2013 NOTE: See Footnotes beginning on Page 47 for description of amendments. 73 CONTENTS 74 PAGE NO. PREFACE I DEVELOPMENT CONSIDERATIONS 2 GENERAL NOTES 7 DEFINITIONS 8 PART I. INDUSTRIAL Seet+eft4- Statistisal Analysis 4-0 See e_ n Light ladustFial penalitted Use 44 Secuot"IL 42 cectto, ni 42 PART II. COMMERCIAL Section I. 15 Site Area and Building Area Section II. 26 Permitted Uses Section III. 30 General Development Standards for Commercial Land PART III. GENERAL PARKING REOUIREMENTS Section I. 34 PART N. GENERAL SIGN REQUIREMENTS Section 1. 37 Sign Standards Section 11. 40 Sign Area 74 PART V PART VI. PART VII. Section 111. Maintenance GENERAL LANDSCAPE STANDARDS Section 1. General Statement FOOTNOTES Exhibit A ............................ Exhibit B ............................. Exhibit C ............................. Exhibit D ............................ Exhibit E ............................. ... For Information Only ... Land Use ... Grading and Roads ... Storm Drain ... Water & Sewer ... Boundary and Topography PAGE NO. 41 42 47 715 PREFACE It is the intent of this Planned Community Development to provide comprehensive zoning for what is now the Collins Radio property. Planned within this development are a hotel with banquet and convention facilities, a small retail and service center, service stations, restaurants, bars and theater /nightclubs, a site for the proposed Orange County Courthouse with the balance of the acreage developed as a business and professional office park emphasizing open space. Reniaming wi4iia the 13ar4E will be the existing Callins Piadie faeilib,. 14 will be ineeFpGrated into the pa�k, designed as an integffil element, and desipawd within the light indus4fial segmeat. 70 DEVELOPMENT CONSIDERATIONS (1) This Planned Community Development is a project of The Koll Company. This area is most appropriate for commercial and light industrial uses, and therefore we submit the enclosed air traffic analysis, vehicular analysis, land use analysis and market analysis to substantiate this document Attached drawings indicate land use, grading and roads, storm drains, water and sewer, topography and traffic analysis. The site is comprised of approximately - 17119154.0 acres and is generally bounded on the northeast by Campus Drive, on the southeast by Jamboree Road and on the west by MacArthur Boulevard. (10) (33) In order to insure development consistent with the master plan concept, a review shall be required. Prior to the issuance of any building permits, a precise development plan shall be submitted by the developer to the Planning Director for review. This precise plan shall conform to the requirements of this Planned Community text and all other applicable codes and regulations and shall be approved prior to submission by The Kell Company. Included in the plan review material shall be: Building Criteria a. size b. location c. height d. materials 2. Parking Criteri a a. areas, including drives and accesses b. quantity c. size 3. Landscaped Areas a. setbacks b. walls c. plazas d. pools, fountains and/or other amenities 4. Signing Criteria a. location b. size c. quantity 5. All other site improvements as directed by the Planning Director and as recommended below. Items 5a through 5e inclusive. E 77 Sewaee System Criteria The sewer system in the vicinity of the lake should be revised to conform to the following criteria: All sewer lines should be located such that they will not be under water even when the lake is at its maximum level. 2. Sewer lines shall be located in 15 -foot wide (minimum) easements and must be accessible to maintenance vehicles at all times. The depth of sewer lines should not exceed 15 feet, with the possible exception of joining the existing system at MacArthur Boulevard. b. Pedestrian Circulation A pedestrian sidewalk system along the public streets shall be constructed throughout the development. The adequacy of such system shall be analyzed independently of any on -site pedestrian walkway system proposed for a particular portion of the development. Bicycle Circulation A system of bicycle paths coordinated with the City's Master Plan of Bicycle Trails and meeting the approval of the Planning Director and the Director of Parks, Beaches and Recreation shall be developed and maintained within the planned community. d. Erosion Control Landscaping plans shall incorporate provisions for Erosion Control on all graded sites which will remain vacant for a considerable period of time prior to commencement of building construction. Traffic Considerations Both MacArthur Boulevard and Jamboree Road shall be widened to provide for 6 through lanes, double left tam lanes at all intersections, and free right turning lanes at all intersections. ii. Von Karman shall be widened at the intersection with MacArthur Boulevard to provide 6 Imes. iii. All streets on the site except for Von Karman shall be flared to provide at least 5 lanes at intersections with peripheral streets. iv. Birch Street shall be flared to 5 lanes at the intersection with Von Karman. V. Campus Drive shall be widened to provide dual left turn Imes at Von Karman. vi. Von Karman shall be improved for its full length from MacArthur Boulevard to Campus Drive in conjunction with initial development of areas which do not take primary access from Campus Drive or Jamboree Road. vii. Access rights to MacArthur Boulevard shall be dedicated to the City except for the Birch Street and Von Kamran Avenue intersections. Consideration may be given to providing additional access points at a later date if more detailed traffic studies demonstrate the desirability of such additional access points. Consideration shall be limited to right turn egress and right and left turn ingress. (11) viii. Traffic signals shall be constructed at the intersections of MacArthur Boulevard with Birch Street and with Von Karman Avenue when the latter two streets are opened. The developer shall be responsible for 50% of the cost of the signal at Von Karman and 50% of the cost of the signal at Birch Street. ix. A traffic signal shall be constructed at the intersection of Campus Drive and Jamboree Road in conjunction with the initial stages of development. The developer shall be responsible for 25% of the cost of the signal. X. A traffic signal shall be installed at the intersection of Von Karman and Birch Street, with the developer to be responsible for 100 % of the cost. Construction shall be scheduled so that the signal will be completed not later than June 30, 1977. (8) xi. A traffic signal shall be installed at the intersection of Von Karman and Campus Drive, with the developer to be responsible for 50% of the cost. Construction shall be scheduled so that the signal will be completed not later than December 30, 1976. (8) A traffic signal shall be installed at the intersection of Jamboree Boulevard and Birch Street, with the developer to be responsible for 50% of the cost Construction shall 4 79 be scheduled so that the signal will be completed not later than June 30, 1977. (8) In order to accomplish the schedule for construction of these two signals, a cooperative agreement may be entered into between the developer and the City. The agreement shall provide for the developer to advance the nondeveloper share of the funding, if necessary; with provisions for reimbursement by the City. The agreement may also provide for a credit to the developer for funds advanced for the Citys share of construction costs for signals constructed elsewhere in the project (8) xii. Provision for other traffic signals shall be investigated in conjunction with the process of development at a later date. xiii. Phasing of Development. 1,651,757 sq. ft. of develop- ment was existing or under construction as of October 1, 1978. The additional allowable development in the total approved development plan is 1,058,863 sq.ft. Any further development subsequent to October 1, 1978, in excess of 30% of the additional allowable development, being 317,658 sq. ft., shall be approved only after it can be demonstrated that adequate traffic facilities will be available to handle that traffic generated by the project at the time of occupancy of the buildings involved. Such demonstration may be made by the presentation of a phasing plan consistent with the Circulation Element of the Newport Beach General Plan. (12) Air or (2) The following disclosure statement of the City of Newport Beach's policy regarding the Orange County Airport shall be included in all leases or subleases for space in the Planned Community Development and shall be included in the Covenants, Conditions and Restrictions recorded against the property. Disclosure Statement (2) The Lessee herein, his heirs, successors and assigns acknowledge that: The Orange County Airport may not be able to provide adequate air service for business establishments which rely on such service; ii. When an alternate air facility is available, a complete phase out of jet service may occur at the Orange County Airport; M iii. The City of Newport Beach may continue to oppose additional commercial air service expansion at the Orange County Airport; iv. Lessee, his heirs, successors and assigns will not actively oppose any action taken by the City of Newport Beach to phase out or limit jet air service at the Orange County Airport. M GENERAL NOTES Water within the planned community area will be furnished by the Irvine Ranch Water District Prior to or coincidental with the filing of any tentative map or use permit, the developer shall submit a master plan of drainage to the Director of Public Works. The height of all buildings and structures shall comply with Federal Aviation Authority criteria. Except as otherwise stated in this ordinance, the requirements of the zoning code, City of Newport Beach, shall apply. The contents of this supplemental text notwithstanding, no construction shall be proposed within the boundaries of this planned community district except that which shall comply with all provisions of the Building Code and the various mechanical and electrical codes related thereto. room DEFINITIONS Advertising Surface: The total area of the face of the structure, excluding supports. Area of Elevation: Total height and length of a building as projected to a vertical plane. Building Line: An imaginary line parallel to the street right -of -way line specifying the closest point from this street right -of -way that a building structure may be located (except for overhangs, stairs and sunscreens). Rieht -0f- -Way Line: When reference is made to right -of -way line it shall mean the line which is then established on either the adopted Master Plan of Streets and Highways or the filed Tract Map for Minor Roads as the ultimate right -of -way line for roads or streets. Side and Front of Comer Lots: For the purpose of this ordinance, the narrowest frontage of a lot facing the street is the front, and the longest frontage facing the intersecting street is the side, irrespective of the direction in which the structures face. Sign: Any structure, device or contrivance, electric or non - electric and all parts thereof which are erected or used for advertising purposes upon or within which any poster, bill, bulletin, printing, lettering, painting, device or other advertising of any kind whatsoever is used, placed, posted, tacked, nailed, pasted or otherwise fastened or affixed. Commerce: All those permitted uses as specified in Section II, Group I through VII, inclusive, in this text. Commercial Land: The site area upon which any or all commercial permitted uses would exist. SiteArea: (3) The total land area of the land described in the use or other permit, including footprint lots. Special Landscaped Street: HIM Special landscaped streets are designated as MacArthur Boulevard, Jamboree Boulevard and Campus Drive. The landscaping requirements for special landscaped streets and for the remaining streets are described in the following text. Streets - Dedicated and Private: Reference to all streets or rgbts-cf- -way within this ordinance shall mean dedicated vehicular rights -of -way. In the case of private or non - dedicated streets, a minimum setback from the right - of-way line of said streets of ten (10) feet shall be required for all structures. Except for sidewalks or access drives, this area shall be landscaped according to the setback area standards from dedicated streets contained herein. Driveway: Vehicular access ways onto or within private property exclusive of streets, dedicated or private A minimum separation of five (5) feet shall be maintained between all driveways and buildings. Footprint Lot (3) The area of land required for the building pad, encompassing the peripheral area of the building. Appurtenant and contiguous to the footprint lot shall be all parking, landscape, setbacks and other areas as described and required by this text. Landscape Area: (4) The landscape area shall include walks, plazas, water and all other areas not devoted to building footprints or vehicular parking and drive surfaces. In calculating area of required landscaping any off -site landscaping such as landscaped medians or parkways in street rights -of -way shall not be included. r PART I. INDUSTRIAL — Deleted. (331 A. Q..„..:..,. setbacks, within pfopeFty lines. (4) (8)(21 Site 1 oc ana n 25 nna $. Ann..nl.ln o..aa:..n t4aea Site -1 nna aMn,, a 1046-an.ns 10 r r� 11 Im m 13 la 14 NO PART II Section I. Group 1 COMMERCIAL Site Area and Building Area PROFESSIONAL & BUSINESS OFFICES Acreages shown are net buildable land area including landscape setbacks with property lines. (4) A. Building Sites (4) Total Acreage Site A 30.939 acres * (29) Site B 43.703 acres (11) Site C 18.806 acres (10) Site D 19.673 acres Site E 2.371 acres Site F 1.765 acres Site G 5.317 acres (8) 122.574 acres (8)(10)(11) B. Allowable Building Area Office Acreage 30.939 acres *(29) 43.703 acres (11) 18.806 acres (10) 19.673 acres 2.371 acres 1.765 acres 5.317 acres (8) 122.574 acres(8)(10)(11) Site A 366,147 square feet (16)(26)(29)(30) Site B 977,720 square feet (13)(16)(28)(30)(32) Site C 674,800 square feet (10)(15) Site D 240,149 square feet (8)(13) Site E 32,500 square feet (4) Site F 42,646 square feet (4)(3 1) Site G 45,000 souare feet (8) 2,378,962 square feet_(15)( *)(31) C. Statistical Analysis (4) The following statistics are for information only. Development may include but shall not be limited to the following: Story heights shown are average heights for possible development. The buildings within each parcel may vary. Assumed Parking Criteria: One (1) space per 225 square feet of net building area @ 120 cars per acre for Sites C, D, E, F and G. *(3)(4) In addition to 19.399 acres of office use, there is 9.54 acres for hotel and motel and 2.0 acres of lake within Office Site A. Therefore, there are 30.939 acres net within Office Site A. (3)(4)(16) 15 b. One (I) space per 300 square feet of net building area @ 120 cars per acre for Sites A, B and C. (11) Site A Allowable Building Area ....... 366,147 square feet (16)(26)(29)(30) Site Area ...... 19.399 acres "(3)(4)(16) a. Building Height Land Coverage (16)(29)(30) Two story development ............... 4.20 acres Three story development ............... 2.80 acres Four story development ............... 2.10 acres Five story development ............... 1.68 acres Six story development ............... 1.40 acres Seven story development ............... 1.20 acres Eight story development ............... 1.05 acres Nine story development ............... 0.93 acres Ten story development .... I.......... 0.84 acres Eleven story development ............... 0.76 acres Twelve story development ............... 0.70 acres b. Parking Land Coverage 1,221 cars .............. 10.18 acres (11, 16,29,30) Landscaped Open Space (4,11,16) Land Coverage (29,30) Two story development Three story development Four story development Five story development Six story development Seven story development Eight story development Nine story development Ten story development Eleven story development Twelve story development 2. Site B Allowable Building Area Site Area 16 5.02 acres 6.42 acres 7.12 acres 7.54 acres 7.80 acres 8.02 acres 8.17 acres 8.29 acres 8.38 acres 8.46 acres 8.52 acres ......... 977,720 square feet (13,16,28,30) ......... 43.703 acres (4) (11) 91 a. Building Height Land Coverage (16,28,30,32)) Two story development ............... 11.22 acres Three story development ............... 7.48 acres Four story development ............... 5.61 acres Five story development ............... 4.49 acres Six story development ............... 3.74 acres Seven story development ............... 3.21 acres Eight story development ............... 2.81 acres Nine story development ............... 2.49 acres Ten story development ............... 2.24 acres Eleven story development ............... 2.04 acres Twelve story development ............... 1.87 acres b. Parking Land Coverage (11,13,16,28, 30,32) ) 3,259 cars ............... 27.16 acres C. Landscaped Open Space (11) Land Coverage (11,13,16,28,30,32)) Two story development ............... 5.32 acres Three story development ............... 9.06 acres Four story development ............... 10.93 acres Five story development ............... I2.05 acres Six story development ............... 12.80 acres Seven story development ............... 13.33 acres Eight story development ............... 13.73 acres Nine story development ............... 14.05 acres Ten story development ............... 14.30 acres Eleven story development ............... 14.50 acres Twelve story development ............... 14.67 acres 3. site C(10) Allowable Building Area Site Area Building Height Two story development Three story development Four story development Five story development Six story development Seven story development Eight story development Nine story development Ten story development Eleven story development Twelve story development 17 ......... 674,800 square feet (15) (17)* ......... 18.806 acres (4) Land Coverage (15) ......... 7.75 acres ......... 5.16 acres ......... 3.87 acres ......... 3.10 acres ......... 2.58 acres ......... 2.21 acres ......... 1.94 acres ......... 1.72 acres ......... 1.55 acres ......... 1.41 acres ......... 1.29 acres 92 b. Parking 2,249 cars Land Coverage (15) ......... 18.74 acres ` The square footage includes a maximum of 3,250 square feet for up to two (2) restaurants, bars, or theater /nightclubs. Any portion or all of the floor area not utilized for the purpose shall revert to professional and business office use. (17) Landscaped Open Space Two story development Three story development Four story development Five story development Six story development Seven story development Eight story development Nine story development Ten story development Eleven story development Twelve story development 4. Site D Allowable Building Area Site Area Building Height Two story development Three story development Four story development Five story development Six story development Seven story development Eight story development Nine story development Ten story development Eleven story development Twelve story development b. Parking 1,067 cars 18 Land Coverage (4)(15) ............... -7.68 acres -5.09 acres -3.80 acres -3.03 acres -2.51 acres -2.14 acres -1.87 acres -1.65 acres -1.48 acres -1.34 acres -1.24 acres ......... 240,149 square feet (8)(13) ......... 19.673 acres (4) Land Coverage(8) (13) ......... 2.75 acres ......... 1.84 acres ......... 1.38 acres ......... 1.10 acres ......... 0.92 acres ......... 0.79 acres ......... 0.69 acres ......... 0.61 acres ......... 0.55 acres ......... 0.50 acres ......... 0.46 acres Land Coverage (8) (13) ......... 8.89 acres 93 Landscaned Open Space Two story development Three story development Four story development Five story development Six story development Seven story development Eight story development Nine story development Ten story development Eleven story development Twelve story development 5. Site E Allowable Building Area Site Area Building Height Two story development Three story development Four story development Five story development Six story development Seven story development Eight story development Nine story development Ten story development Eleven story development Twelve story development b. Parking 144 cars Landscaped Open Space (4) Two story development Three story development Four story development Five story development Six story development Seven story development Eight story development Nine story development Ten story development Eleven story development Twelve story development 19 Land Coverage (4) (8) (13) ........ I...... 8.03 acres ............... 8.94 acres ............... 9.40 acres ............... 9.68 acres ............... 9.86 acres ............... 9.99 acres ............... 10.09 acres ............... 10.17 acres ............... 10.23 acres ............... 10.28 acres ............... 10.32 acres ......... 32,500 square feet (4) ....1.... 2.371 acres (4) Land Coverage (4) ......... 0.37 acres ......... 0.25 acres ......... 0.19 acres ....1.... 0.15 acres ......... 0.12 acres ......... 0.11 acres ......... 0.10 acres ......... 0.09 acres ......... 0.08 acres ......... 0.07 acres ......... 0.06 acres Land Coverage (4) ......... 1.20 acres Land Coverage ............... 0.80 acres ............... 0.92 acres ............... 0.98 acres ............... 1.02 acres ...... I........ 1.05 acres ............... 1.06 acres ............... 1.07 acres ............... 1.08 acres ............... 1.09 acres .... I.......... 1.10 acres ............... 1.11 acres 94 6. Site F (4)(3 1) Allowable Building Area ......... 42,646 square feet Site Area ......... 1.765 acres a. Building Height Land Coverage One story development ............... 0.98 acres Two story development ............... 0.49 acres Three story development ............... 0.33 acres Four story development ............... 0.24 acres Five story development ...........0.20 acres Six story development ............0.16 acres b. Parking Land Coverage 190 cars ............... 1.58 acres C. Landscaped Open Space Land Coverage One story development ............... <0.80> acres Two story development ............... <0.31> acres Three story development ............... <0.15> acres Four story development ............... <0.06> acres Five story development ................ <0.02> acres Six story development .............. <0.03> acres 7. Site G (8) Allowable Building Area ......... 45,000 square feet Site Area ......... 5.317 acres a. Building Height Land Coverage One story development ............... 1.03 acres Two story development ............... 0.52 acres Three story development ............... 0.34 acres Four story development ............... 0.26 acres h. Parking Land Coverage 200 cars ............... 1.67 acres C. Landscaped Open Space Land Coverage One story development ............... 2.62 acres Two story development .... I... I...... 3.13 acres Three story development ............... 3.31 acres Four story development ............... 3.39 acres Building g eight Maximum building height shall not exceed twelve (12) stories above ground level, and shall in no way exceed the height limits set by the Federal Aviation Authority for Orange County Airport. Conclusions 20 9,5 The preceding figures indicate that within a fixed maximum density as the height of the building increases the resulting open landscaped area also increases. Group II. HOTEL & MOTEL (1) A. Building Sites For the purposes of this statistical analysis, 9.54 acres have been allotted for hotel and motel development. This acreage is for statistical purposes only. It is necessary to allot a specific acreage within this analysis to secure office building densities within their specific parcels. Development may include but shall not be limited to this acreage. The hotel and motel site size shall be determined at the time a use permit is secured. B. Building Height Maximum building height shall not exceed height limits set by the Federal Aviation Authority for Orange County Airport. Group III. COURT HOUSE A. Building Site Site 1: 7.80 acres ...... ............................... 7.80 acres B. Building Area Site 1: 90,000 square feet ........................ 90,000 square feet The following statistics are for information only. Development may include but shall not be limited to the following. C. Parking 400 Cars ................................ ............................... 3.33 acres D. Landscaped Open Stine e Land Coverage Two story development ......... ............................... 3.44 acres Three story development ....... ............................... 3.78 acres Four story development ......... ............................... 3.95 acres Five story development .......... ............................... 4.06 acres Six story development ............ ............................... 4.13 acres E. Building Height Maximum building height shall not exceed height limits set by the Federal Aviation Authority for Orange County Airport. 21 Group IV Group V SERVICE STATIONS A. Building Sites (4) (5) (11) Site 3: 1.765 acres .... ............................... 1.765 acres Service station site 3 shall be located within Office Site F and shall not exceed 1.765 acres in size. Any portion or all of Site 3 not utilized for service station use shall revert to either professional and business office use or restaurant use. (4) RESTAURANTS (1) (4) A. Building Sites Maximum acreages for Site 2 shall not exceed 1.25 (18) acres. Maximum acreage for Site 3: 1.765 acres. Maximum acreages for Sites 4 and 5 shall not exceed 3.0 acres. Maximum acreage for Sites 6 and 7 shall not exceed 2.2 acres. (8) (The following acreages are for information only.) Site I Deleted see Group VII. Site2 ..................... ............................... Site3 ..................... ............................... Site 4 Deleted ....... ............................... Site 5 Deleted ....... ............................... Site6 ..................... ............................... Site7 ..................... ............................... .............. (18) 1.25 acres 1.765 acres ................(30) .............. (30) 1.50 acres (8) 0.70 acres (8) 5.215 acres ............215 acres t301 Site I Deleted see Group VII Private Club (18) Site 2 (4101 Jamboree — Taco Bell) located within Office Site "B" (4)(16)(30) Site 3 located within Office Site "F ". (4) Site 4 (4300 Von Karman Avenue — Kom Restaurant) deleted and reverted to Site B Professional and Business Office Allowable Building Area. (30) Site 5 deleted from Office Site `B" and transferred to Office Site "A" as Professional and Business Office Allowable Building Area (30) Sites 6 and 7located within Office Site "G ". (8) Any portion or all of the restaurant, bar, theater /nightclub acreage for Sites 2, 4, 5, 6 or 7 not utilized for that purpose shall revert to professional and business office use. Any portion or all of the restaurant acreage for Site 3 not utilized for that purpose shall revert to either professional and business office use or service station use. (4) (8) (18) The following statistics are for information only. Development may include but shall not be limited to the following. 97 B. Building Area (4)(8) (30) Site 2 ................ 2,397sq. ft. ...... 0.06 acres (30) Site 3 ................ 10,000 sq. ft. ...... 0.22 acres Site 4 ................ Deleted Site 5 ................ Deleted Site 6 (8) .......... 7,000 sq. ft. ...... 0.16 acres Site 7 (8) .......... 3.000 sa. ft. ...... 0.07 acres 22.397 sa. ft. ...... 0.51 acres .......0.51 acres (8, 18, 30) C. Parking Criteria: 300 occupants /10,000 sq. ft. I space /3 occupants and 120 cars per acre. Site 2 .......... 24 cars ............. 0.20 acres (30) Site 3 .......... 100 cars ............... 0.84 acres Site 4 .......... Deleted Site 5 .......... Deleted Site 6 (8) ... 70 cars ............... 0.58 acres Site 7 (8) ... 30 cars ............... 0.25 acres 224 cars ............... 187 acres ....... 1.87 acres (8) (18)(30) D. Landscaped Open Space (4) (30) Site 2 .......... 0.99 acres (30) Site 3 .......... 0.70 acres Site 4 .......... Deleted Site 5 .......... Deleted Site 6 (8) .... 0.76 acres Site 7 (8) .... 0.38 acres 2 3�rgS ........... ............................... 2.83 acres (8) (18)(30) E. Building e eight Building height of structures shall be limited to a height of thirty-five (35) feet. 23 Group VI. RETAIL & SERVICE CENTER A. Building Site (4) (5) Site 1 .......... 5.026 acres Site 2 Deleted (30) 5.026 acres .......... ............................... 5.026 acres (30) Site 2 shall be located within Office Site `B." Any portion or all of the retail and service Site 2 acreage not utilized for that purpose shall revert to professional and business office use. (4) (16) Site 2 deleted from Office Site `B" and transferred to Office Site "A" as Professional and Business Office Allowable Building Area. (30) B. Allowable Building Area (5) * Retail Site No. 1 .......... 120,000 sq. ft. (14)(27) Retail Site No. 2 Deleted (30) * Retail Site No. 1 (sq. Ft.) Parcel Existing Total Parcel L R/S 588 (H) (If) 70.630 Parcel 3, R/S 506 (R) (R) 0 Parcel 4, R/S 506 (R) 4,115 (R) 21,896 (0) 0 (0) 5.474 Subtotal (R) 12,315 (R) 21,896 (0) 0 (0) 27,474 (H) 70,630 Total 120.000 (141(271 (R) = Retail (0) = Office (H) = Hotel C. Landscape Area (5) Twenty-five (25) percent of the 5.026 acres constituting retail and service center Site No. 1 shall be developed as landscape area. If twenty-five (25) percent of the 5.026 acres constituting retail and service center Site No. l is not developed as landscape area, a specific site plan shall be submitted to the City of Newport Beach Planning Commission for approval prior to the issuing of a building permit. D. Statistical Analysis (5) 24 E. The following statistics are for information only. Development may include but shall not be limited to the following. Assumed parking criteria: One (1) space per 200 square feet of net building area at 120 cars per acre. 1. Site I Allowable Building Area ..... ............................... 120,000 sq. ft. (14)(27) Site Area .............................................. ............................... 5.026 acres a. Building Height (14) Two story development ........... ............................... 1.17 acres Three story development ......... ............................... 0.78 acres Four story development ........... ............................... 0.59 acres Five story development ............ ............................... 0.47 acres b. Parking (14) 460 cars .................................... ............................... 3.83 acres C. Landscaped Open Space (14) Two story development ........... ............................... 0.03 acres Three story development ......... ............................... 0.87 acres Four story development .......... ............................... 0.61 acres Five story development ........... ............................... 0.73 acres 2. Site 2 Deleted (30) Buildin e Mehl Building height of structures shall be limited to a height of thirty-five (35) feet above mean existing grade as shown on Exhibit `B." (5) Building height of structures for Service Site 1 shall be limited to a height of sixty feet (27) W 100 Group V11. PRIVATE CLUB (18) A. Building Site Site 1 .......................... 2.0 acres ........ ............................... 2.0 acres Site 1 shall be located within Office Site "A" Any portion or all of the private club acreage not utilized for that purpose shall revert to professional and business office use. 1. Site I Allowable Building Area ............... .........................45,000 square feet (26) B. Building Height Building height of structures shall be limited to a height of fifty (50) feet. Section B. Permitted Uses Group 1. PROFESSIONAL AND BUSINESS OFFICES To allow the location of commercial activities engaged in the sale of products or services relating to and supporting the Development Plan, provided that such activities are confined within a building or buildings. A. Professional Offices similar in nature to but not limited to the following: (6) 1. Accountants 2. Attorneys 3. Doctors, dentists, optometrists, oculists, chiropractors and others licensed by the State of California to practice the healing arts. 4. Engineers, architects, surveyors and planners. B. Business Offices similar in nature to but not limited to the following: (6) 1. Advertising agencies 2. Banks 3. Economic consultants 4. Employment agencies 5. Escrow offices 6. Insurance agencies 7. Laboratories a. Dental b. Medical c. X -Ray d. Bio- chemical e. Film, wholesale only f. Optometrical 8. Stockbrokers 26 101 9. Studios for interior decorators, photographers, artists and draftsmen. 10. Telephone answering services 11. Tourist information and travel agencies C. Hotel and Motel (1) To allow for the location within Office Site "A" of a hotel or motel development, subject to a use permit. D. Restaurants, bars and theater/nightclubs subject to the procedures, regulations and guidelines set forth in Title 20 of the Newport Beach Municipal Code, in each case. (1) (3) (4) (7) (25) 1. Deleted (18) * 2. To allow within the 43.703 acres of Office Site "B" three (3) restaurant, bar or theater /nightclub sites. (16) 3. To allow within the 18.806 acres of Office Site "C" up to two (2) restaurant, bar or theater /nigbtclub sites with a total area not to exceed 3,250 square feet. Specific location of these restaurants, bars or theater /nightclubs to be determined at a later date. The permitted professional and business offices' allowable building area for the site will be reduced accordingly. (17) 4. To allow within the 1.765 acres of Office Site "F° two (2) restaurant, bar or theater /nightclub sites. Specific location of these sites to be determined at a later date. All other acreage shall be adjusted and shall not increase or decrease the professional and business offices allowable building area for the site. 5. To allow within the 5.317 acres of Office Site "G" three (3) restaurant, bar or theater /nightclub sites. Specific location of these sites to be determined at a later date. All other acreage shall not increase or decrease the professional and business offices' allowable building area for the site. (8) (25) * E, private Club (4) (18) (26) To allow within Office Site "A" one (l) private club site at 4110 MacArthur Boulevard. F. Service Station (4) To allow within Office Site "F" one (1) service station site. Specific location to be determined at a later date. All other acreages shall be adjusted and shall not increase or decrease the professional and business office allowable building area for the site. 27 102 * (4) If restaurant, but or theater /nightclub, or private club uses are developed, the allowable building area for Office Site `B" shall be restricted by one of the following conditions: 1. The 963,849 square feet of allowable building area shall not increase or decrease so long as twenty -five (25) percent of the 41.969 acres constituting Office Site °B" is developed as landscaped area. (16) 2. If twenty -five (25) percent of the 42.709 acres constituting Office Site "B" is not developed as landscape area, the 963,849 square feet of allowable building area shall be reduced by the gross building area of the restaurants, bars or theater /nightclubs and/or private club. The allowable building area shall be further reduced by the number of additional parking spaces required to support a restaurant, bar or theater /nightclub, or a private club beyond what would be required for an equivalent area of office use. The reduction shall be 225 square feet per additional space. (16) G. Support Commercial (20) The uses permitted under this section are of a convenience nature ancillary to the operation and use of office facilities. These uses shall be in addition to those sites permitted under Part B. Section B. Group V (Restaurants). These uses shall not increase the allowable building area for Professional and Business Office. Retail sales and services including tobacco stores, card shops, confectionery and newspaper stands, and other uses which, in the opinion of the Planning Director, are of a similar nature. Retail uses shall be located in the basement or on the first floor of a building. Storage for such uses shall be within a building. 2. Restaurants, including outdoor restaurants and take -out restaurants, bars or theater /nightclubs shall be permitted subject to the procedures, regulations and guidelines set forth in Title 20 of the Newport Beach Municipal Code, in each case. (25) Group II. HOTEL & MOTEL (1) Subject to a use permit. Group III. COURT HOUSE State, County and/or City Facilities. Group W. SERVICE STATIONS & MECHANICAL CAR WASH (4) A. Service stations subject to the City of Newport Beach service station standards. 28 103 B. Mechanical car wash, subject to a use permit. Mechanical car wash shall only be allowed in conjunction with or in lieu of a permitted service station use. Group V. RESTAURANTS (7) A. Restaurants, including outdoor, drive -in or take -out restaurants, bars and theater /nightclubs, shall be subject to the procedures, regulations and guidelines set forth in Title 20 of the Newport Beach Municipal Code, in each case. Facilities other than indoor dining establishments or those that qualify as outdoor, drive -in or take -out establishments shall be subject to the City of Newport Beach regulations covering drive -in and outdoor establishments. (25) Group Vl. RETAIL & SERVICE CENTER (1) A. Permitted Uses 1. Restaurants, including outdoor, drive -in or take -out restaurants, bars and theater /nightclubs, shall be permitted subject to the procedures, regulations and guidelines set forth in Title 20 of the Newport Beach Municipal Code, in each case, except as noted under "a" and "b" below. (7) (25) a. Restaurants, other than outdoor, drive -in or take -out restaurants, shall be permitted subject to the procedures, regulations and guidelines set forth in Title 20 of the Newport Beach Municipal Code, in each case. (25) b. Outdoor, drive -in or take -out restaurants shall be subject to the procedures, regulations and guidelines set forth in Title 20 of the Newport Beach Municipal Code, in each case. (25) 2. Barber shop and beauty parlor 3. Book and stationery store 4. Blueprinting and phou statics 5. Camera Shop 6. Delicatessen store 7. Florist 8. Shoe store or repair shop 9. Tailor 10. Tobacco store W �19 11. Office equipment rentable and repair 12. Pharmacies 13. Tourist information, travel agencies, and ticket reservation services, but not to include any airline terminal services or facilities for the transport of passengers, baggage, or freight. (1) 14. Athletic club or health clubs (5) * 15. Professional and Business Offices (5) 16. Other uses similar to the above listed 17. Hotel subject to approval of a Use Permit (27) Group VII. LODGE HALLS, PRIVATE CLUBS, ATHLETIC CLUBS, UNION HEADUARTERS (1) (4) (18) Subject to use permit. GroupVlll. AUTO DETAILING (19) A. All drainage shall be into the sanitary sewer system. B. That all car wash and auto detailing operations shall be conducted within a covered area. C. This service shall be designed to serve building tenants and their patrons and guests, and shall be ancillary to the primary use. Section QI. General Development Standards for Commercial Land A. Site Area Minimum site area shall not be less than thirty thousand (30,000) square feet. Footprint lots shall have all required appurtenant areas contiguous thereto and the sum of these areas shall not be less than thirty thousand (30,000) square feet. (3) * To allow, in addition to the 2,320,600 square feet of professional and business office use permitted elsewhere in the text, a maximum of 38,022 net square feet of professional and business office use within Retail and Service Center Site 1. (5) (14) Exception: (9) The Planning Commission may authorize an exception to the minimum site area. Application for any such exception shall be made at the time of the filing of a tentative map by the applicant. In order for an exception to be granted, the Planning Commission shall find the following facts with respect thereto: 30 105 I. That the granting of the exception will not be detrimental to the public welfare or injurious to other property in the vicinity. 2. That the Development Considerations and intent of this planned Community Development Standards are substantially met. B. Building Area Maximum building area for professional and business offices shall be as noted in Site Area and Building Area, Part 11, Section I, Group I.B. Parking basements or parking structures shall not be calculated as building area; however, said structures shall be used only for the parking of company vehicles, employee vehicles, or vehicles belonging to persons visiting the subject firm. (4) C. Setbacks All setbacks shall be measured from the property line. For the purpose of this ordinance, a street side property line is that line created by the ultimate right -of -way of the frontage street. Front Yard Setback (10) Thirty (30) feet minimum; except that unsupported roofs or sunscreens may project six (6) feet into the setback area. The setback for Site C from MacArthur Boulevard would be at least thirty-six (36) feet except that unsupported roofs or sun - screens any project six (6) feet into the setback. 2. Side Yard Side yard setbacks will be required only when any one of the following conditions exist: a. Comer Lot: Thirty (30) feet (street side setback only), except that unsupported roofs and sunscreens may project three (3) feet into setback area. b. Where property abuts other than commercially zoned property, a ten (10) foot setback is required. Unsupported roofs and sunscreens may project three (3) feet into the setback area. Rear Yard None required except on a through -lot in which case the required front yard setback shall be observed. 31 100 4. Footprint Lots (6) Except as required by the Uniform Building Code, there shall be no additional setback requirements for buildings within footprint lots. Provided, however, that buildings within footprint lots shall be so located as to observe the setbacks from streets and existing lot lines required under Part 11, Section III, C.1, 2 and 3. D. Loading Areas 1. Street side loading on other than special landscaped streets shall be allowed providing the loading dock is set back a minimum of seventy (70) feet from the street right -of- way line, or one hundred ten (110) feet from the street center line, whichever is greater. Said loading area must be screened from view from adjacent streets. E. Storage Areas I. All outdoor storage shall be visually screened from access streets, freeways and adjacent property. Said screening shall form a complete opaque screen up to a point eight (8) feet in vertical height, but need not be opaque above that point. 2. Outdoor storage shall be meant to include all company owned and operated motor vehicles, with the exception of passenger vehicles. 3. No storage shall be permitted between a frontage street and the building line. Refuse Collection Areas 1. All outdoor refuse collection areas shall be visually screened from access streets, freeways and adjacent property. Said screening shall form a complete opaque screen. 2. No refuse collection area shall be permitted between a frontage street and the building line. G. Telephone and Electrical Service All "on-site" electrical lines (excluding lines in excess of 12KV) and telephone lines shall be placed underground. Transformer or terminal equipment shall be visually screened from view from streets and adjacent properties. H. Pedestrian Access (1) 2l�� It is required of all developments in the commercial areas to submit a plan of pedestrian access to the Planning Department prior to the issuance of building permits. Said plan will detail consideration for pedestrian access to the subject property and to adjacent properties and shall be binding on subsequent development of the property. The plan shall show all interior walkways and all walkways in the public right -of- way, if such walkways are proposed or necessary. 1. Parkins All parking shall be as specified in the General Parking Requirements, Part III. J. signs All signing shall be as specified in the General Sign Requirements, Part N. K. Landscape All landscaping shall be as specified in the General Landscape Requirements, Part V. 33 I: PART III. GENERAL PARKING REQUIREMENTS Section I A. Adequate off -street parking shall be provided to accommodate all parking needs for the site. The intent is to eliminate the need for any on- street parking. Required off -street parking shall be provided on the site of the use served, or on a contiguous site, or within three hundred (300) feet of the subject site. Where parking is provided on other than the site concerned, a recorded document shall be approved by the City Attorney and filed with the Building and Planning Departments and signed by the owners of the alternate site stipulating to the permanent reservation of use of the site for said parking. B. Parking requirements for specific sites shall be based upon the following parking criteria. All parking shall be determined based upon building type and the area within allotted to the following functions: 1. Business & Professional Offices One (1) space for each 225 square feet of net floor area. The parking requirement may be lowered to one (1) space for each 250 square feet of net floor area upon review and approval of the modification committee. Company parking stalls shall not exceed twenty-five (25) percent of the total number of required parking spaces. The number and design of compact parking stalls shall be reviewed and approved by the Planning Director. (11) Exception: (I1) Parking Requirement for Business and Professional Office Buildings based on Parking Pool. The parking requirements for office buildings within a contiguous office site may be modified in accordance with the following schedule when the net building area or areas served exceeds 100,000 square feet. a. For the first 125,000 square feet, parking shall be provided at one space per 250 square feet of net floor area. b. For the next 300,000 square feet, parking shall be provided at one space per 300 square feet of net floor area. C. Any additional floor area, parking shall be provided at one space per 350 square feet of net floor area. d. For pools based on more than 425,000 square feet of net floor area, the Planning Commission may modify the parking formula by use permit, based on a demonstrated formula. 34 119 2. Medical & Dental Offices Five (5) spaces for each doctor or one (1) space for each 200 square feet of gross floor area, whichever is greater. 3. nnanef....,.._., n..........,.h and A,.,........u. Deleted. (33) 4. AVefehewe Deleted. (33) 5. Lodge Halls, Private Clubs, Athletic Clubs, Union Headquarters (1) (4) (5) a. One (1) space for each 75 square feet of gross floor area plus one (1) space for each 250 square feet of gross office floor area. b. Specific parking requirements shall be developed for private clubs or athletic clubs based upon functions and occupancies within this use. Parking shall be in conformance to existing City of Newport Beach requirements for said occupancies or at a demonstrated formula agreeable to the Planning Director. (4) In the event that private clubs or athletic clubs are converted to another use, parking requirements for the new use shall be subject to review by the Planning Director. (5) 6. Restaurants, Bars or Theater/Nishtclubs, Outdoor, Drive -In and Take - Out Restaurants (7) a. Restaurant, bar or theater /nightclub parking shall be in accordance with Title 20 of the Newport Beach Municipal Code, except as noted under "b" and "c" below. 110 b. Restaurants, other than outdoor, drive -in or take -out restaurants, within retail and service centers shall provide one (1) space for each 200 square feet of net floor area and one (l) loading space for each 10,000 square feet of gross floor area, to the extent that the net floor area of all restaurants does not exceed twenty (20) percent of the net floor area of the retail and service center. In the event that any restaurant causes the total of all restaurant uses in the retail and service center to exceed the twenty (20) percent limitation noted above, that entire restaurant and any subsequent restaurants shall provide parking as noted under "a" above. C. Parking for outdoor, drive -in and take -out restaurants shall be provided in accordance with Section 20.53.060 of the Newport Beach Municipal Code. 7. Commercial Retail and Service Center (5) One (1) space for each 200 square feet of net floor area. One (1) loading space for each 10,000 square feet of gross floor area. Professional and business office parking shall be provided per Part III, Section I.B.1. Athletic or health club parking shall be provided per Part III, Section I.B.Sb. 8. Hotels and Motels One (1) space for each guest unit plus employees' parking on a demonstrated formula. Parking for restaurants, bars, banquet rooms, retail shops or service stores shall be as specified in the above applicable section or on a demonstrated formula acceptable to the Planning Director. Professional and business office net floor area shall be included in this provision. Athletic and health club net floor area shall be excluded from this provision. (5) 9. Court House Specific parking requirements shall be developed based upon functions and occupancies within this zone. Parking shall be in conformance to existing City of Newport Beach requirements for said occupancies, or at a demonstrated formula agreeable to the Planning Director. 36 111 PART N. GENERAL SIGN REQUIREMENTS Section I. Sign Standards A. Signs visible from the exterior of any building maybe lighted, but no signs or any other contrivance shall be devised or constructed so as to rotate, gyrate, blink or move in any animated fashion. B. Signs shall be restricted to advertising only the person, firm, company or corporation operating the use conducted on the site or the products sold thereon. C. A wall sign with the individual letters applied directly shall be measured by a rectangle around the outside of the lettering and/or the pictorial symbol and calculating the area enclosed by such line. D. All signs attached to the building shall be surface mounted. Group I. PERMANENT IDENTIFICATION SIGNS A. Ground Sims Ground signs shall not exceed four (4) feet above grade in vertical height Also, ground signs in excess of one hundred and fifty (150) square feet in area (double face) shall not be erected in the first twenty (20) feet, as measured from the property line, of any street side setback. Said sign shall not exceed a maximum area of two hundred (200) square feet. B. Wall Sims In no event shall an identification sign placed on a wall comprise more than ten (10) percent of the area of the elevation upon which the sign is located. Said signs shall be fixture signs. Signs painted directly on the surface of the wall shall not be permitted. The following exceptions apply to industrial zoning only. In the instance of a multiple tenancy building, each individual industry may have a wall sign over the entrance to identify the tenant. Said sign shall give only the name of the company and shall be limited to six (6) inch high letters. Said signs must be oriented toward the parking or pedestrian area for that building and shall not exceed a maximum area of five (5) square feet. 2. Fascia mounted identification signs limited to two (2) facades for each building and structure. No sign shall exceed an area equal to one and one -half (I 1/2) square feet of sign for each one (1) foot of lineal 37 112 frontage of the building or store. However, no sign shall exceed two hundred (200) square feet in area per face. 3. The following exceptions apply to Professional and Business Offices and Retail and Service Center uses only. In the instance of a multiple tenancy building, each individual ground floor business may have signing in addition to permitted Building Identification signs. (6) Each individual ground floor business shall be limited to one (1) sign per frontage not to exceed two (2) signs per business. Said signs shall not be located above the ground floor fascia. No sign shall exceed an area equal to ten (10) percent of the business face upon which it is located. However, no sign shall exceed thirty-five (35) square feet in area. (6). In no event shall there be more than three (3) permitted ground floor wall signs per building for Professional and Business Offices. (6) C. Pole Signs One (1) identification pole sign per site will be allowed for the following commercial businesses only: a. Restaurant b. Cocktail lounge and/or bar C. Hotel If a pole sign is utilized, it shall be in lieu of other identification signs allowed by ordinance. Pole signs shall be limited to a maximum height of twenty (20) feet and a maximum area of fifty (50) square feet per face, double faced. Group 11. TEMPORARY IDENTIFICATION SIGNS A. The following signs shall conform to all requirements for "Ground Signs," Section I, Group I, Item A with General Sign standards above unless specifically limited below. 38 113 Sale or Lease Sim A sign, advertising the sale, lease or hire of the site shall be permitted in addition to the other signs listed in this section. Said sign shall not exceed a maximum area of forty (40) square feet. 2. Construction Sim One (1) construction sign denoting the architects, engineers, contractor, and other related subjects, shall be permitted upon the commencement of construction. Said sign shall be permitted until such time as a final inspection of the building(s) designates said structure(s) fit for occupancy, or the tenant is occupying said building(s), whichever occurs first. Said sign shall not exceed a maximum area of forty (40) square feet. Future Tenant Identification Sim A sign listing the name of future tenant, responsible agent or reshot, and identification of the industrial complex shall be permitted. Said sign will be permitted until such time as a final inspection of the building(s) designates said structure(s) fit for occupancy or tenant is occupying said building(s), whichever occurs first. Said sign shall not exceed a maximum area of forty (40) square feet. 4. Directional Sims Signs used to give directions to traffic or pedestrians or give instructions as to special conditions shall not exceed a total of six (6) square feet (double face) in area and shall be permitted in addition to the other signs in this section. Exceptions Group II.A.I, 2 and 3: this information may be grouped on a single sign when the aggregate surface area does exceed the summation of the individual areas for each use. This area may be distributed on all surfaces of the sign. This sign may not exceed four (4) feet above grade. Group III. SPECIAL PURPOSE SIGNS A. The following permanent signs shall be permitted. Permanent Directional Sim Signs used to give directions to traffic or pedestrians as to special conditions shall not exceed a total of six (6) square 39 EQM feet in area per face, double faced and shall be permitted in addition to other signs permitted in these standards. 2. Community Directional and/or Identification Sign Permanent directional and identification signs, not exceeding two hundred fifty (250) square feet (per face), shall be permitted but subject to use permit. Section H. Sign Area A. Deleted. (334n4astria4 The following shall apply to Permitted Uses, Part 1, Section n. Formatted: Indent: Left: 0 ", Han9in9: 2.5 ", Tab stops: 2.5 ", Left B. Business and Professional Offices (33) The following shall apply to Permitted Uses, Part I, Section 111. No sign shall exceed an area equal to one and one -half (1 1/2) square feet of sign for each one (1) foot of lineal frontage of the building. However, no sign shall exceed two hundred (200) square feet in area per face. C. Commercial The following shall apply to Permitted Uses, Part II, Section II, Groups 11,111, V and VI. Building identification shall be limited to a single entity. Building identification signs shall have an area not to exceed one and one- half (1 1/2) square feet of surface for each one (1) foot of lineal frontage of building. However, no sign shall exceed two hundred (200) square feet per face. Building identification signs shall be limited to two (2) facades. D. Business and Professional Offices The following shall apply to Permitted Uses, Part 11, Section II, Group I. 40 1-f 5 Building identification shall be limited to a single entity. Building identification signs shall have an area not to exceed one and one- half (1 1/2) square feet of surface for each one (1) foot of lineal frontage of building. However, no sign shall exceed two hundred (200) square feet per face. Building identification signs shall be limited to two (2) facades. Section 111. Maintenance All signs indicated in this section shall be maintained in a neat and orderly fashion. Periodic inspection shall be made as directed by the Planning Director, City of Newport Beach or his designated agent. 41 110 PART V. GENERAL LANDSCAPE STANDARDS Section I. General Statement (1) Detailed landscape and irrigation plans, prepared by a registered Architect or under the direction of a Landscape Architect, shall be submitted to and approved by the Planning Director and the Director of Parks, Beaches and Recreation prior to issuance of a building permit and installed prior to issuance of Certificate of Use and Occupancy. Landscape in the public right -of -way shall be installed per plans and specifications approved by the Parks, Beaches and Recreation Director and in accordance with Parks, Beaches and Recreation Standards. All landscaping in this section shall be maintained in a neat and orderly fashion. Periodic inspections will be made as directed by the Planning Director and reports submitted with regard to the condition of maintenance. If suggestions of improvement are made, and are in the realm of the Maintenance Standards, the work shall be corrected within thirty (30) days of receipt of the report. A. Maintenance 1. All planting areas to be kept free of weeds and debris. 2. Lawn and ground covers to be kept trimmed and /or mowed regularly. 3. All plantings to be kept in a healthy and growing condition. Ferfilization, cultivation and tree pruning are to be carried out as part of regular maintenance. 4. Irrigation systems are to be kept in working condition. Adjustment and cleaning of system should be a part of regular maintenance. 5. Stakes, guys and ties on trees should be checked regularly for correct function; ties to be adjusted to avoid creating abrasions or girdling to the stems. 6. Damage to plantings created by vandalism, automobile or acts of nature shall be corrected within thirty (30) days. 42 -z7 B. Front Yard Setback Area General Statement Landscaping in these areas shall consist of an effective combination of street trees, trees, ground cover and shrubbery. All unpaved areas not utilized for puking shall be landscaped in a similar manner. Full coverage of ground cover to be expected in a minimum of three (3) months. 2. Special Landscaped Street The entire area between the curb and the building setback line shall be landscaped, except for any driveway in said area. Tree size to be no less than 24 -inch box. Other Streets The entire area between the curb and a point ten (10) feet back in the front property line shall be landscaped except for any driveway in said area. Tree size to be no less than 24 inch box. C. Side Yard and Rear Yard General Statement All unpaved areas not utilized for parking and storage, shall be landscaped utilizing ground cover and/or shrub and tree materials. 2. Undeveloped Area Undeveloped areas proposed for future expansion shall be maintained in a weed free condition, but need not be landscaped. 3. Screenine Areas used for parking shall be screened from view or have the view interrupted by landscaping and/or fencing from access streets, freeways and adjacent properties. Plant materials used for screening purposes shall consist of lineal or grouped masses of shrubs and /or trees of a sufficient size and height to meet this requirement when initially installed. 4. Boundary Areas 43 118 Boundary landscaping is required on all interior property lines. Said areas shall be placed along the entire length of these property lines or be of sufficient length to accommodate the number of required trees. Trees, equal in number to one (1) tree per twenty -five (25) lineal feet of each property line, shall be planted in the above defined areas in addition to required ground cover and shrub material. Minimum width of property line landscaping shall be three (3) feet. All landscaped areas shall be separated from adjacent vehicular areas by a wall or curb, at least six (6) inches higher than the adjacent vehicular area. D. Parking Areas Trees, equal in number to one (1) per each five (5) parking stalls, shall be provided in the parking area. Planting area around building shall not be included in parking area. Planting of trees may be in groups and need not necessarily be in regular spacing. E. Sloped Banks All sloped banks greater than 5 to 1, or six (6) feet in vertical height and adjacent to public right -of -way shall be stabilized, planted and irrigated with full coverage in accordance with plans submitted and approved by Planning Director. Loading Areas Street side loading on other than special landscaped streets, shall be allowed providing the loading dock is set back a minimum of seventy (70) feet from the street right - of -way line or one hundred ten (110) feet from the street center line, whichever is greater. Said loading area must be screened from view from adjacent streets. G. Storage Areas All outdoor storage shall be visually screened from access streets, freeways and adjacent property. Said screening shall form a complete opaque screen up to a point eight (8) feet in vertical height but need not be opaque above that point. 2. Outdoor storage shall be meant to include all company owned and operated motor vehicles, with the exception of passenger vehicles. No storage shall be permitted between a frontage street and the building line. 44 -I" H. Refuse Collection Area All outdoor refuse collection areas shall be visually screened from access streets, freeways and adjacent property. Said screening shall form a complete opaque screen. 2. No refuse collection area shall be permitted between a frontage street and the building line. Minimum width for landscaping shall be three (3) feet around refuse collection areas. Telephone and Electrical Service All `on- site" electrical lines (excluding limes in excess of 12 KV) and telephone lines shall be placed underground. Transformer or terminal equipment shall be visually screened from view from streets and adjacent properties, or an approved method of display. Pedestrian Access (1) It is required of all developments in the commercial areas to submit a plan of pedestrian access to the Community Development Department prior to the issuance of building permits. Said plan will detail consideration for pedestrian access to the subject property and to adjacent properties, and shall be binding on subsequent development of the property. The plan shall show all interior walkways and all walkways in the public right -of -way, if such walkways are proposed or necessary. K. Landscape Plant Vocabulary (1) It is the intent of this standard to provide flexibility and diversity in plant selection yet maintain a limited variety to give greater unity to the development. At the direction of the Director of Community Development and the Director of Parks, Beaches and Recreation, material lists and a street tree master plan shall be developed to aid in this development. All trees occurring in the ten (10) foot setback shall be no less than 24 inch box. The parking lot trees shall be no less than fifteen (15) gallon size. Shrubs to be planted in containers shall not be less than one (1) gallon size. Ground covers will be planted from one (1) gallon containers or from root cuttings. 45 120 Every effort should be made to avoid using plants with invasive and shallow root systems with fruit that would stain paving or automobiles. L. Earth berms shall be rounded and natural in character, designed to obscure automobiles and to add interest to the site. In cases where the ratio of width and height of berm creates a bank greater than 3 to 1, shrubs or walls can be used as shown in illustration (b) (c). Wheel stops shall be so placed that damage to trees, irrigation units and shrubs is avoided. A Trees in parking lots should be limited in variety. Selection should be repeated to give continuity. Regular spacing is not required and irregular groupings may add interest. Care should be exercised to allow plants to grow and maintain their ultimate size without restriction. N. Storage areas are to be provided with an opaque screen up to a point of eight (8) feet in vertical height. Combination of plantings can be used to further soften hard materials and give continuity to planting. 46 121 PART VI. FOOTNOTES (1) Planned Community text revision incorporating Planning Commission revisions and conditions of approval. (2) Planned Community Text revision incorporating City Council conditions of approval as adopted by the city of Newport Beach. (Amendment No. 313, adopted August 14, 1972). (3) Planned Community Text revision July 6, 1973 incorporating the addition of footprint lots and the addition of two (2) restaurant sites within Office Site "A ". (Amendment No. 381, adopted August 2, 1973). (4) Planned Community Text revision (Amendment No. 420, adopted February 7, 1974) incorporating the following changes: a. Revised Planned Community Text site acreage figures to conform to the recorded tract map. b. Revised Exhibit "A" (land use map) to conform to recorded tract map. C. Changed the size of Office Site "E" and created one parcel of land comprised of Restaurant Site No. 3, Service Station Site No. 3 and the residual of Office Site "C ". This new site is designated as Office Site ,.F„ d. Revised Retail and Service Site No. 2 from a specific location to a floating location within Office Site "A ". e. Added mechanical car wash subject to a use permit as a permitted use on the service station sites. f Added private clubs or athletic clubs as a permitted use on Office Site „B„ g. Made provisions for three (3) additional restaurant sites, two sites within Office Site `B: and one site within Office Site "F ". (5) Planned Community Text revision (Amendment No. 430, adopted June 10, 1974) incorporating the following changes: a. Eliminated Service Station Site No. 2. In. Added health or athletic club as a permitted use within the Retail and Service Center sites. C. Added Professional and Business Office as a permitted use within the Retail and Service Center sites. d. Added a minimum twenty-five (25) percent landscape requirements or site plan approval by the Planning commission to the development requirements of retail Site No. 1. (6) Planned Community Text revision (Amendment No. 444, adopted May 15, 1975) incorporating the following changes: a. Clarified the setback requirements for buildings within footprint lots. b. Clarified Professional and Business Office permitted uses. C. Added signing provision for ground floor businesses in multi- tenant building. 47 122 (7) Planned Community Text revision (Amendment No. 451, adopted September 8, 1975) incorporating the following changes: a. Added the requirement that all restaurants shall be subject to the securing of a use permit with the exception of certain restaurant uses within Retail and Service Centers. (8) Planned Community Text revision (Amendment No. 466, adopted June 28, 1976) incorporating the Following changes: a. Changed the size of Light Industrial Site No. 2. b. Created Professional and Business Office Site "G ". C. Made provisions for two (2) restaurant sites within Office Site "G ". d. Reduced the allowable building area of Office Site "D ". e. Amended the construction timetable for traffic signals. (9) Planned community Text revision (Amendment No. 475, adopted January 10, 1977) incorporating the following changes: a. Established guidelines for an exception to the minimum site area. (10) Planned Community Text revision (Amendment No. 505, adopted July 11, 1978) incorporating the following changes: a. Increased the site area of Professional and Business Office Site „C„ b. Increased the allowable building area of Professional and Business Office Site "C ". (11) Planned Community Text revision (Amendment No. 508, adopted August 28, 1978) incorporating the following changes: a. Made provision for consideration of additional left turn ingress from MacArthur Boulevard. b. Eliminated Service Station Site No. I and added the land area to Professional and Business Office Site `B ". C. Reviewed the parking requirement for office buildings within Professional and Business Office sites. (12) Planned Community Text revision (Amendment No. 514, adopted October 19, 1978) incorporating the following changes: a. Established existing and additional allowable development as of October 1, 1978. b. Established the requirement and criteria for phasing plan approval of development beyond thirty (30) percent of the additional (13) Planned Community text revision incorporating the transfer to allowable building area from Professional and business Office Site "D: to Professional and Business Office Site "B ". (Amendment No. 550, adopted November 10, 1980). 48 12S (14) Planned Community Text revision for Retail and Service Site No. 1, which allocates existing and permitted development. (Amendment No. 558 adopted March 23, 1981). (15) Planned community Text revision increasing the allowable building area in Site C (MacArthur Court). (Amendment No. 593, adopted October 24, 1983). (16) Planned Community Text revision incorporating the transfer of allowable office, restaurant and retail building area from Professional and Business Office Site "A" to Professional and Business Office Site `B ". (Amendment No. 606, adopted May 14, 1984). (17) Planned Community Text revision to allow up to two restaurants with a total floor area not to exceed 3,250 square feet within "Office Site C ". (Amendment No. 626, adopted December 9, 1985). (18) Planned Community Text revision deleting restaurant Site 1 and substituting a private club with a total floor area not to exceed 30,000 square feet within Office Site "A ". (Amendment No. 635, adopted July 14, 1986). (19) Planned Community Text revision to allow auto detailing as a permitted use. (Amendment No. 647, adopted March 23, 1987). (20) Planned Community Text revision adding support commercial uses to the permitted uses under Professional and Business Office permitted uses. (Amendment No. 649, adopted July 27, 1987). (21) Planned Community text revision combining Light Industrial Sites 1 and 2 into Light Industrial Site 1, increasing the allowable building area for the combined site by 39,000 square feet, and increasing the permitted building height from 35 feet to 55 feet. (Amendment No. 677, adopted. June 12, 1989). (22) Planned Community Text revision increasing the permitted building height in Light Industrial Site I from 55 feet to 75 feet. (Amendment No. 799, adopted April 25, 1994). (23) Title 20 amendment to reinstate notice and appeal procedures for specialty food service applications. (Amendment No. 829, adopted September 11, 1995, Ordinance 95 -39) (24) Planned Community Text revision to increase the permitted height within "Light Industrial Site I" from 75 feet to 90 feet for a single vertical column. (Amendment No. 867, adopted February 23, 1998, Ordinance 98 -3). (25) Planned Community Text revisions (Amendment No. 876, adopted August 10, 1998, Ordinance 98 -20) to allow the following changes: a. Additional restaurant uses in Office Site "G" (the current limited of two restaurants will be increased to three restaurant sites), and; b. Permit eating and drinking establishments throughout the Koll Center Planned Community as per Title 20 of the Municipal Code. 49 W01 (26) Planned Community Text revisions (Amendment No. 890, adopted 01/11/2000, Ordinance 99 -28) to allow the following changes: a. Increase the permitted level of development for Office Site A by 15,000 square feet (4110 MacArthur Boulevard) and; b. Establish the permitted level of development for Kell Center Newport Office Site A at 418,346 gross square feet. (27) Planned Community Text revisions (Amendment No. 897, adopted January 25, 2000, Ordinance 2000 -3) to allow the following changes: a. Designate Parcel 1 of Kell Center Newport Retail and Service Site 1 for Hotel Use, and; b. Establish the permitted Gross Floor Area for Kell Center Newport Retail and Service Site 1 at 120,000 square feet, and C. Establish the permitted height for the site at 60 feet. (28) Planned Community Text revisions (Ordinance No. 2005 -014, adopted August 9, 2005) to allow the following changes: Office expansion of 1,367 net square feet in the Koll Center Office Site B at 4200 Von Kamtan Avenue. (29) Planned Community Text revisions (Ordinance No. 2006 -19), adopted July 25, 2006 to allow the following changes: To increase the development allocation for Professional and Business Offices of Site A by 2,129 net square feet. (PA2005 -293) (30) Planned Community Text revisions (Ordinance No. 2006 -21), adopted October 24, 2006 to allow the following changes: a. To allow the transfer of 24,016 gross square feet of unused retail, restaurant and office square footage from Office Site B to Office Site A resulting in the elimination of the entire Retail Site #1, an undeveloped portion of Restaurant Site #2 and the entire Restaurant Site #5. (31) Planned Community Text revisions (Ordinance No. 2011 -3), adopted January 25, 2011 to allow the following changes: a. To allow building area for Professional & Business Site F to increase by 18, 346 net square feet. (32) Planned Community Text revisions (Ordinance No. 2011 -8), adopted March 8, 2011 to allow the following changes: a. To allow an increase to the Allowable Building Area for Professional & Business Site B by 9,917 net square feet 50 1215 (33) Planned Community Text revisions (Ordinance No. 2013- , adopted - -- Formatted: Tab stop:: 0.38 ^, LW .2013 to allow the following changes: a. To delete Light Industrial Sites 1 and 2 from PC -1 L + Level: 1 + b. To delete Part 1. Industrial uses in its entirety as an allowed use. Numherirg style: a, b, e, .. + Start at: 1 + c. To revise the total acreage within PC -I 1 to 154.0 acres to reflect the deletion Alignment: Left + Aligned at: 1" + indent at: 1.25', Tab stops: Not at -P' + -0.5" of Light Industrial Sites 1 and 2 from PC -11. d. To undate the Composite exhibit and Exhibits A through E to reflect the deletion of Light Industrial Sites 1 and 2 from PC -11. Insert exhibits: Composite .............. ............................... For Information Only 3 Exhibit A ............... ............................... Land Use-(33) Exhibit B ................ ............................... Grading and Roads 31 Exhibit C ................ ............................... Storm Drain 3 Exhibit D ............... ............................... Water & Sewer 3 Exhibit E ................ ............................... Boundary and Topography -CL 51 120 Planning Commission Resolution No. Page 68 of 103 EXHIBIT E PLANNED COMMUNITY DEVELOPMENT PLAN ADOPTION PC2012 -001 Consists of: • Draft Uptown Newport Planned Community Development Plan dated November 29, 2012, which consists of the followings: 1. Land Use Development Standards & Procedures 2. Design Guidelines 3. Phasing Plan Exhibit E is available for review at the Planning Division of Community Development Department or at http: / /newoortbeachca.gov /index.aspx ?paqe =2029 127 Planning Commission Resolution No. Page 69 of 103 EXHIBIT F REQUIRED FINDINGS TENTATIVE TRACT MAP NO. NT2012 -002 In accordance with NBMC Section 19.12.070 (Required Findings for Action on Tentative Maps), the following findings and facts in support of such findings are set forth: Finding: A. That the proposed map and the design or improvements of the subdivision are consistent with the General Plan and any applicable specific plan, and with applicable provisions of the Subdivision Map Act and this Subdivision Code. Facts in Support of Finding: A -1. The Tentative Tract Map provides lot configurations consistent with the land uses, densities and intensities of the proposed PCDP, the General Plan Land Use designation of Mixed -Use Horizontal -2 (MU -H2) and the Airport Business Area Integrated Conceptual Development Plan (ICDP). MU -1­12 provides for horizontal intermixing of uses that may include regional commercial office, multifamily residential, vertical mixed -use buildings and ancillary neighborhood commercial uses. Additionally, the ICDP allocates up to 1,244 residential units and 11,500 square feet of retail to be developed on the Property. Under the proposed Project, 632 units would be developed as replacement units for redevelopment of the existing industrial uses, 290 additive units would be allocated to the proposed Project in accordance with the City's General Plan and the ICDP and 322 density bonus units would be authorized pursuant to NBMC Chapter 20.32 (Density Bonus), for a total of 1,244 residential units. The proposed residential community also includes 11,500 square feet allocated for neighborhood commercial uses and is therefore consistent with the intent of General Plan and ICDP. A -2. General Plan goal LU 2.1 seeks to accommodate uses that support the needs of City residents including housing, retail, services, employment and recreation. The Tentative Tract Map allows the development of a residential community, containing a mix of housing types, supporting retail and active parklands, consistent with the proposed PCDP, General Plan designation and ICDP, which encourage the development of coordinated, cohesive mixed use projects in the Airport Area. A -3. The Tentative Tract Map provides for the development of a cohesive planned community with a pattern of streets and blocks that provide a pedestrian - friendly environment, with strong connectivity to adjacent commercial and office areas. A network of paseos, open space and pedestrian walkways would be introduced into the community to serve as connections between Project neighborhoods and provide linkages to surrounding areas. Two one acre parks, as well as recreational open space amenities, are proposed. 122 Planning Commission Resolution No. Page 70 of 103 A -4. The streets on the proposed Tentative Tract Map are consistent with the roadway specifications of the Master Plan of Streets and Highways of the Circulation Element of the General Plan. Traffic control measures are also included with the Uptown Newport Planned Community to ensure proposed private roadways and City roadways function as intended. A -5. The Tentative Tract Map provides for the dedication of at least 8 percent of the gross land area (exclusive of existing rights -of -way), or 2.0 acres of neighborhood parks. Phase 1 would include the dedication (the general public would have access to the park during daytime hours) and improvement of a neighborhood park with a minimum area of 1.3 acre and a minimum dimension of 150 feet. Phase 2 would include the dedication and improvement of a neighborhood park with a minimum area of 1.02 acre and a minimum dimension of 150 feet. Finding: B. That the site is physically suitable for the type and density of development Facts in Support of Finding: B -1. Overall site topography can be characterized as relatively flat. B -2. There are no known faults on or immediately adjacent to the Property B -3. There are no geologic or physical constraints that would prevent the development of the site at the density proposed, or require variances or deviations from the applicable City development standards. Finding: C. That the design of the subdivision or the proposed improvements are not likely to cause substantial environmental damage nor substantially and avoidably injure fish or wildlife or their habitat. However, notwithstanding the foregoing, the decision making body may nevertheless approve such a subdivision if an environmental impact report was prepared for the project and a finding was made pursuant to Section 21081 of the California Environmental Quality Act that specific economic, social or other considerations make infeasible the mitigation measures or project alternatives identified in the environmental impact report. Facts in Support of Finding: C -1. No drainages traverse the Property and no potential jurisdictional waters or wetlands areas are present on or immediately adjacent to the site. C -2. No sensitive habitats, plant species or animal species were observed onsite during the preparation of the El for the Project. 129 Planning Commission Resolution No. Page 71 of 103 C -3. The DEIR prepared for the Project concluded that without mitigation one impact could be potentially significant: the Project would remove vegetation that could be used for nesting by migratory birds. However, the DEIR concluded that the impact would be less than significant after mitigation. C -4. On the basis of the entire environmental review record, the proposed Project will have a less than significant impact upon the environment with the incorporation of mitigation measures, with the exception of the following significant and unavoidable impacts: B. Air Quality — Short term construction - related emission for Phases 1 and 2 of the project C. Land Use - A determination of inconsistency with the John Wayne Airport Environs Land Use Plan (AELUP) by the Airport Land Use Commission (ALUC) D. Noise - Construction - related noise impacts for Phase 1 and Phase 2 of the project C -5. The mitigation measures identified in the DEIR are feasible and reduce potential environmental impacts to a less than significant level, with the exception of those impacts identified above. The mitigation measures would be applied to the Project through the Mitigation, Monitoring and Reporting Program. Finding: D. That the design of the subdivision or the type of improvements is not likely to cause serious public health problems. Facts in Support of Finding: D -1. There are no known faults on or immediately adjacent to the Property. D -2. The Project is conditioned to comply with all Building, Public Works and Fire Codes, which are in place to prevent serious public health problems. Public improvements will be required of the Applicant per Section 19.28.010 of the Municipal Code and Section 66411 of the Subdivision Map Act. D -3. The Project's Phase 1 would generate an increase in Green House Gas ( "GHG ") emissions onsite but would not exceed the proposed South Coast Air Quality Management District per capita significance thresholds. At full build -out the Project would result in a net decrease in GHG emissions. D -4. Mitigation measures identified in the DEIR reduce potential impacts associated with hazards and hazardous materials to less than significant. No significant unavoidable adverse impacts relating to hazards were identified in the DEIR. D -5. While the north and northwest portions of the Property have soil and groundwater impacted by volatile organic compounds, the areas have been the primary focus of 130 Planning Commission Resolution No. Page 72 of 103 historical and ongoing soil and groundwater investigation and remediation activities conducted under the oversight of the Regional Water Quality Control Board. D -6. No residential uses are allowed without first providing regulatory signoff from RWQB. Additionally residential uses will be setback a minimum of 200 feet from any hazardous materials as stated in Mitigation Measure 7 -2 of the DEIR. Finding: E. That the design of the subdivision or the type of improvements will not conflict with easements, acquired by the public at large, for access through or use of property within the proposed subdivision. In this connection, the decision making body may approve a map if it finds that alternate easements, for access or for use, will be provided and that these easements will be substantially equivalent to ones previously acquired by the public. This finding shall apply only to easements of record or to easements established by judgment of a court of competent jurisdiction and no authority is hereby granted to the City Council to determine that the public at large has acquired easements for access through or use of property within a subdivision. Facts in Support of Finding: E -1. The Property contains existing public utilities easements that serve existing development that will be removed over time. The design of the subdivision and the type of improvements proposed present no conflict with these easements. Existing easements will remain in their current designated locations or will be modified to be substantially equivalent to ones previously acquired by the public. Finding: F. That, subject to the detailed provisions of Section 66474.4 of the Subdivision Map Act, if the land is subject to a contract entered into pursuant to the California Land Conservation Act of 1965 (Williamson Act), the resulting parcels following a subdivision of the land would not be too small to sustain their agricultural use or the subdivision will result in residential development incidental to the commercial agricultural use of the land. Facts in Support of Finding: F -1. The Property does not contain prime farmland, unique farmland, or farmland of statewide importance and no portion of the Project site is covered by a Williamson Act contract. Finding: G. That, in the case of a "land project' as defined in Section 11000.5 of the California Business and Professions Code: (1) There is an adopted specific plan for the area to be included within the land project; and (2) the decision making body finds that the proposed land project is consistent with the specific plan for the area. 131 Planning Commission Resolution No. Page 73 of 103 Facts in Support of Finding: G -1. The Property is not located in a specific plan area. Finding: H. That solar access and passive heating and cooling design requirements have been satisfied in accordance with Sections 66473.1 and 66475.3 of the Subdivision Map Act. Facts in Support of Finding: H -1. The proposed Tentative Tract Map and improvements are subject to Title 24 of the California Building Code that requires new construction to meet minimum heating and cooling efficiency standards depending on location and climate. The Newport Beach Community Development Department enforces Title 24 compliance through the plan check and inspection process. Finding: 1. That the subdivision is consistent with Section 66412.3 of the Subdivision Map Act and Section 65584 of the California Government Code regarding the City's share of the regional housing need and that it balances the housing needs of the region against the public service needs of the City's residents and available fiscal and environmental resources. Facts in Support of Finding: 1 -1. Of the total 1,244 residential units in the Project, between 102 and up to 369 units would be set aside for affordable housing depending upon the target income group being served. Affordable housing obligations will be met through the construction of on -site affordable housing consistent with an approved Affordable Housing Implementation Plan (AHIP). Finding: J. That the discharge of waste from the proposed subdivision into the existing sewer system will not result in a violation of existing requirements prescribed by the Regional Water Quality Control Board. Facts in Support of Finding: J -1. There is adequate sewer system capacity to serve the requirements of the proposed Project. The Project's PCDP and phasing plan ensure adequate utility infrastructure is provided per phase. The proposed Project would be able to tie into the existing sewer system without adversely affecting the system or causing any water quality affects or violating existing requirements prescribed by the Regional Water Quality Control Board. Wastewater from the project will be generated by residential and retail commercial uses and at full buildout; there will be a significant reduction in wastewater with the elimination of the existing semi - conductor manufacturing plant. i32 Planning Commission Resolution No. Page 74 of 103 Findincr K. For subdivisions lying partly or wholly within the Coastal Zone, that the subdivision conforms with the certified Local Coastal Program and, where applicable, with public access and recreation policies of Chapter Three of the Coastal Act. Facts in Support of Finding: K -1. The Project site is not located within the Coastal Zone. i33 Planning Commission Resolution No. Page 75 of 103 EXHIBIT G CONDITIONS OF APPROVAL TENTATIVE TRACT MAP NO. NT2012 -002 Note: The following is a list of acronyms used in the Conditions of Approval for Tentative Tract Map No. 17438: • DA —Development Agreement No. DA2012 -003. • EIR No. ER2012 -001- Uptown Newport Environmental Impact Report, State Clearinghouse Number 2010051094. • MM— Mitigation Measure, project specific measures recommended by the DEIR and adopted as part of the approval of the project to reduce potentially significant environmental effects to a level considered less than significant and stated at the end of a condition as a reference between the condition and a mitigation measure recommended in the DEIR. • MMRP — Mitigation Monitoring and Reporting Program, the monitoring and reporting procedures for the Mitigation Measures identified in the EIR and adopted as part of project approval pursuant to Section 21081.6(x)(1) of the California Environmental Quality Act. • NBMC —Newport Beach Municipal Code. General Conditions 1. City Council approval of Tentative Tract Map No. 17438 is in conjunction with its approval of Development Agreement No. DA2012 -003 for the same project (the "DA "). Pursuant to Sections 2.2 and 2.4 of the DA and the terms used therein that are defined in Section 1 of the DA, the "Term" of the DA becomes effective on the "Effective Date" of the DA. Tentative Tract Map No. 17438 and the DA comprise parts of a single integrated action and are not severable from one another. Accordingly, notwithstanding any other provision set forth in Tentative Tract Map No. 17438 to the contrary, in no event shall the owner, lessee, or other occupant or any person or entity holding any interest in the subject property acquire any right to develop or use the subject property as authorized or provided herein unless and until the Effective Date in the DA occurs and the Term of the DA commences. In the event the DA is terminated for any reason before the Effective Date of the DA occurs, including without limitation as a result of the mutual termination of the DA by the Parties thereto, the occurrence of an uncured material default under the DA by either Party and a termination of the DA by the non - defaulting Party, or the failure of the Effective Date of the DA to occur prior to the deadline set forth in the DA, as said deadline may be extended by mutual agreement of the Parties to the DA, then in such event Tentative Tract Map No. 17438 automatically shall become null and void and of no further force or effect, without any need or requirement for the City to schedule any public hearings or take any affirmative action or actions to revoke or rescind the same. IS4 Planning Commission Resolution No. Page 76 of 103 2. Notwithstanding any provision expressly or impliedly to the contrary, in the event of any conflict or inconsistency between any of the terms or conditions of Tentative Tract Map No. 17438 and the DA, the terms and conditions of the DA shall control. In the event of any conflict or inconsistency between or among the conditions of Tentative Tract Map No. 17438, the Director of Community Development shall determine the controlling condition. 3. The applicant shall comply with all applicable provisions of NBMC Chapter 19.40, General Dedication Requirements. 4. The applicant shall comply with all applicable provisions of NBMC Chapter 15.38, Fair Share Traffic Contribution Ordinance, and Chapter 15.42, Major Thoroughfare and Bridge Fee Program. Fair Share and Transportation Corridor Agency fees shall be paid prior to the issuance of building permits. 5. The applicant shall comply with all applicable provisions of NBMC Chapter 15.40, Traffic Phasing Ordinance (TPO). 6. Tentative Tract Map No. 17438 shall expire 24 months from the date of approval pursuant to NBMC Chapter 19.16.010, unless an extension is otherwise granted by the City for the period of time provided for in the Development Agreement pursuant to the provisions of California Government Code Section 66452.6(a). 7. The development of the project is subject to compliance with all applicable submittals approved by the City and all applicable City ordinances, policies, and standards, subject to modification by these Conditions of Approval. 8. Development of the project shall comply with the requirements of the Uptown Newport Planned Community Development Plan and be in substantial conformance with the approved Tentative Tract Map No. 17438 dated November 28, 2012, except as modified by applicable conditions of approval and the DA. 9. To the fullest extent permitted by law, the applicant shall indemnify, defend and hold harmless the City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to the City's approval of the Uptown Newport project including, but not limited to, the approval of the Tentative Tract Map No.17438, Uptown Newport Planned Community Development Plan No. PC 2012 -001, Planned Community Development Plan Amendment No. PD2011 -003, Traffic Study No. TS2012 -005, Affordable Housing Implementation Plan No. AH2012 -001, Development Agreement No. DA2012 -003, and /or the City's related California Environmental Quality Act determinations, the certification of the Final Environmental Impact Report No. ER2012 -001 (SCH #2010051094), and the adoption of a Mitigation i35 Planning Commission Resolution No. Page 77 of 103 Monitoring and Reporting Program, and /or statement of overriding considerations adopted for the project. This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by applicant, City, and /or the parties initiating or bringing such proceeding. The applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The applicant shall pay to the City upon demand, from time to time, any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. The provisions herein shall not apply to the extent such damage, liability or claim is caused by the willful misconduct or sole active negligence of the City or the City's officers, officials, agents, employees, or representatives. 10. The applicant shall comply with all project design features, mitigation measures, and standard conditions contained within the approved MMRP of EIR SCH No. 2010051094 for the project. 11. The applicant shall have the sole obligation to fund or arrange funding for the planning, design, engineering, construction, supervision, inspection and all other costs associated with the site development, including construction of the two neighborhood parks, paseos, pedestrian sidewalks, Class 1 bike trail along the project frontage along Jamboree Road, and all public and private infrastructure, as further described in subsequent conditions of approval, including but not limited to; streets, landscaped parkways, water and sewer facilities, storm drains, and dry utilities to serve residential and commercial development as identified in the Uptown Newport Planned Community Development Plan. 12. New development within the project site shall be subject to the state - mandated school fees and Santa Ana Unified School District Measure G and C general obligation taxes based upon assessed value of the residential and commercial uses. 13. The project shall provide parkland and in -lieu fees in an amount consistent with General Plan Policy LU6.15.13 and the Newport Beach Subdivision Code. a. In accordance with Subdivision Code, the total Parkland Dedication Requirement is 13.62 acres. This total acreage is based upon the parkland dedication standard of 5 acres per 1,000 people established by Section 19.52.040, a total of 1,244 units authorized, and a 2010 Census population standard of 2.19 persons per household. b. A total of 2.05 acres of parkland shall be dedicated to the City consistent with General Plan Policy LU6.15.13. The timing of dedication shall be consistent with Section 19.52.090 of the Subdivision Code. ISO Planning Commission Resolution No. Page 78 of 103 C. The proposed public park in Phase 1 shall be included in the first final map in Phase 1 and the proposed public park in Phase 2 shall be included in the first final map in Phase 2. d. The residual parkland dedication requirement of 11.57 acres shall be satisfied by the payment of fees in -lieu of dedication in accordance with the Development Agreement. 14. rmsr thp thp DA. Delete. 15. Section 3.3 and Section 6.3 of the Phase Plan shall be amended to include the following provisions: The existing emergency vehicle access to and from the Koll Center property in Phase 1 as depicted in Figure 3 -5 and Figure 6 -5 shall be preserved in perpetuity. This connection through Koll Center Newport to Von Karman Avenue may be expanded to allow for public access for pedestrians, bicycles, and vehicles in the future. 16. In accordance with California Fire Code Section 2704.1.1 Amendment, no person shall use or store any amount of extremely hazardous substances equal to or greater that the disclosable amounts as listed in Appendix A, part 355, Title 40 of the Code of Federal Regulation in a residential zone or adjacent to property developed with residential uses. 17. In accordance with California Fire Code Section 903.2.8, an automatic sprinkler system installed in accordance with California Fire Code Section 903.3 shall be provided throughout all buildings. 18. In accordance with California Fire Code Section 907.2.9, a manual fire alarm system that activates the occupant notification system shall be provided when any dwelling unit or sleeping unit is located three or more stories above the lowest level of exit discharge, or the building contains more than 16 dwelling or sleeping units. 19. In accordance with California Fire Code Section 906.1, 2A 1013C type fire extinguishers shall be required and installed on each floor or level. Travel distance to an extinguisher shall not exceed 75 feet from any point in a building. Parking garages shall be required to have a 2A 2013C located every 50 feet. 20. In accordance with California Fire Code Section 907.2.11.2, smoke alarms shall be installed and maintained on the ceiling or wall outside of each separate sleeping area in the immediate vicinity of bedrooms, in each room used for sleeping purposes, and in each story within a dwelling unit. The smoke alarms shall be interconnected in such a manner that the activation of one alarm will activate all of the alarms in the individual unit. Smoke alarms shall receive their primary power from the building wiring and shall be equipped with a battery backup. 137 Planning Commission Resolution No. Page 79 of 103 21. The applicant shall provide required fire flow in accordance with Newport Beach Fire Department Guideline B.01 "Determination of Required Fire Flow ". 22. Fire hydrants shall be provided, located and, installed as per California Fire Code and Newport Beach Fire Department Guideline F.04. 23. Fire apparatus access roads shall be provided as per Newport Beach Fire Department Guideline C.01. The fire apparatus road shall extend to within 150 feet of all development, facilities, and all portions of the exterior walls of the first story of the building. Minimum width of a fire access roadway shall be 20 feet, no vehicle parking allowed. The width shall be increased to 26 feet within 30 feet of a hydrant, no vehicle parking allowed. Parking on one side is permitted on 28 -foot wide streets. Parking on two sides permitted on 36 -foot wide streets. No parking is permitted on streets narrower than 28 feet in width. Access roads shall have an unobstructed vertical clearance of not less than 13 feet 6 inches. 24. The inside turning radius for an access road shall be 20 feet or greater. The outside turning radius shall be a minimum of 40 feet (without parking.) Cul -de -sacs with center obstruction shall require a larger turning radius as approved by the Newport Beach Fire Department. 25. Fire lane signage shall be provided as per Newport Beach Fire Department Guideline C -02. 26. In accordance with California Fire Code Section 510.1 Amendment, emergency responder radio coverage shall be provided in buildings or structures that has more than three stories above grade plane or any building or structure, regardless of the number of stories, in which any single floor space exceeds 45,000 square feet, or any building or structure containing a subterranean space of 250 square feet or more, or any building or structure deemed likely to have diminished in- building communications. The emergency responder radio coverage shall comply with the Newport Beach Fire Department Guideline D.05 "Public Safety Radio System Coverage ". 27. In accordance with California Fire Code Section 905.3, standpipes shall be provided to all buildings where the floor level of the highest story is located more than 30 feet above the lowest level of Fire Department vehicle access, or buildings where the floor level of the lowest story is located more than 30 feet below the highest level of Fire Department vehicle access, or building that are two or more stories below the highest level of Fire Department vehicle access. 28. An encroachment permit is required for all work activities within the public right -of -way. 29. All improvements shall comply with the City's sight distance requirement. See City Standard 110 -L. 138 Planning Commission Resolution No. Page 80 of 103 30. In case of damage done to public improvements surrounding the development site by the private construction, said damage shall be repaired and /or additional reconstruction within the public right -of -way could be required at the discretion of the Public Works Inspector. 31. All on -site drainage shall comply with the latest City Water Quality requirements. 32. All existing private, non - standard improvements within the public right -of -way and /or extensions of private, non - standard improvements into the public right -of -way fronting the development site shall be removed unless approved in conjunction with an encroachment permit or encroachment agreement. 33. Internal roadways shall comply with Council Policy L -4 a. 36 feet wide curb to curb with Parking on both sides b. 32 feet wide curb to curb without Parking or parking on one side 34. Lots E, F, G, H, I, J, K, L, U and R shall include a pedestrian and bicycle easement. The existing meandering sidewalk within the easement area shall be reconstructed consistent with City standard designs to provide a minimum 12 -foot wide public sidewalk and bike path, prior to the issuance of first building permit. 35. Any modifications to the easterly half of Jamboree Road, including but not limited to striping and median reconstruction requires approval from the City of Irvine. 36. Uptown Newport Sewer connections to private sewer located on Koll Site: a. If there are existing easements and rights established between the two properties, please note on the plans the easement recordation number for reference. b. Otherwise, Uptown Newport project is required to obtain a letter from Koll Site authorizing the new connections to the private sewer. 37. The applicant shall obtain a Private Sewer Easement from adjacent property for the proposed sewer main which discharges towards Birch Street. If water or other utilities are proposed to be routed through this same area, the applicant shall obtain a Private Utilities Easement, instead. 38. Two new City of Newport Beach manholes are required on Birch Street for the proposed sewer main if constructed: a. One manhole per STD -401 -L to be installed adjacent to the property line. 139 Planning Commission Resolution No. Page 81 of 103 b. One manhole per STD -401 -L to be installed on the main where it tie -in with the existing City sewer line in Birch Street. Prior to Final Map Approval Note: Multiple final Tract maps may be prepared by the applicant and submitted for approval by the City. 39. Any inconsistency in the terms of the documents, maps or plans that establish, govern or regulate the subdivision, zoning or development of the Uptown Newport project shall be resolved by the Community Development Director. 40. Prior to Final Map approval the applicant shall obtain written verification of the availability of sufficient water supply from the Irvine Ranch Water District consistent with the requirements of Section 66473.7 (b) of the Subdivision Map Act. 41. Prior to Final Map approval, the applicant shall submit for review by the Director of Community Development and shall obtain City Attorney approval of Covenants, Conditions and Restrictions (CC &Rs) prepared by an authorized professional and which CC &Rs will be recorded concurrently with the Final Map and which will generally provide for the following: a. Creation of a Master Association, and /or Sub - associations, for the purpose of providing for control over and maintenance at the expense of the Master Association and /or Sub - associations of the two neighborhood parks and common area improvements, which include, but are not limited, to the followings unless otherwise approved by the Director of Public Works: Jamboree Road parkway landscaping, internal project streets, sidewalks, ap ths, drive aisles, neighborhood parks, common landscape areas and irrigation; paseos and parkways /greenbelts; community walls and fencing; slopes; sewer laterals, aad —water laterals, common utilities not maintained by the utility provider and drainage facilities. b. A staten;ept -- vision that all internal streets, sidewalks, common landscape areas, paseos, parkways /greenbelts, walls and fencing within the the — tract, sewer and water laterals, are private and shall be maintained by, and at the expense of, the Master Association, or Sub- Association(s) unless otherwise approved by the Director of Public Works. C. A staterner,rprovision that all homeowners and residents will be provided, open prior to purchase closing or upon signing of rental agreement, the information and requirements for water conservation pursuant to NBMC Chapter 14.16, Water Conservation and Supply Level Regulations. d. A statemepr provision that the Master Association shall be required to advise residents that complaints about offensive odors may be reported to the City 140 Planning Commission Resolution No. Page 82 of 103 using online tools on the City web site and /or to the South Coast Air Quality Management District at 1- 800 - CUT -SMOG (1- 800 - 288 - 7664). e. A statemept- provision that all appropriate written notifications shall be provided to all initial and subsequent buyers, lessees, and renters within Uptown Newport project notifying them that the area is subject to noise from existing land uses, traffic on Jamboree Road, and construction of buildings within the project, and as a result residents and occupants of buildings may experience inconvenience, annoyance or discomfort arising from noise within the project. f. A s`t— provision that the neighborhood parks within Uptown Newport project shall have posted a notification to users regarding proximity to John Wayne Airport and related aircraft and noise. g. A °'rprovision that all appropriate written notifications shall be provided to all initial and subsequent buyers, lessees, and renters within Uptown Newport project notifying them that the area rp oiect is in the vicinity of John Wayne Airport and as a result residents and occupants of buildings may experience inconvenience, annoyance or discomfort arising from the noise resulting from aircraft operating at or near the airport. h. Information to be provided to future residents that uses and structures are subject to the requirements of the approved Uptown Newport Planned Community Development Plan. Lots O and M as shown on Tentative Tract Map 17438 shall be offered for dedication to the City of Newport Beach as a public park in perpetuity and maintained by a Master Association, a Sub - Association and /or other approved and appropriate agency, and that no structures, development or encroachment shall be permitted within the designated park area except as shown on the Final Map, approved Site Development Review, approved landscape and park improvement plans, or as otherwise approved by the City. Provisions that following recordation of each Final Map, each Association formed for the subdivision shall submit to the Community Development Director a list of all current Officers of the Association after each election. k. A y4;tP.. PRt indir.;4 , provision reouiring that proposed amendments to the CC &Rs shall be submitted for review to the Community Development Director or designee, and shall be approved by the City Attorney prior to the amendments being valid. A statemepr provision that the City is a third -party beneficiary to the CC &Rs and has the right, but not the obligation, to enforce any of the provisions of the CC &Rs. -141 Planning Commission Resolution No. Page 83 of 103 M. An agreement between the applicant and the Association that on an annual basis by June 1 of each year reports will be furnished to the Public Works Director in compliance with the reporting requirements of codes and ordinances adopted by the City with respect to the NPDES program. 42. Prior to any Final Map approval, the applicant shall reflect on the Final Map or prepare separate instruments to the satisfaction of the Public Works Director all public access easements, deed restrictions or other instruments including but not limited to those providing for permanent public access to the neighborhood parks, common open space areas, paseos, internal streets and walkways and those providing City access for maintenance of storm drains or any public infrastructure. 43. Prior to any Final Map approval, the applicant shall submit a park and open space management plan for approval by the Director of Community Development, for the long term funding and management of Lots E through BB on Tentative Tract Map 17438 that contain neighborhood parks, paseos, common open space areas, and streets /paths /drive aisles within Uptown Newport Planned Community Development Plan. The park and open space management plan shall identify all entities responsible for ownership, management and maintenance of these areas and their credentials which qualify the entity as capable of management and maintenance of these areas and able to implement all applicable mitigation measures identified in the MMRP. The park and open space management plan shall specify the timeline for commencement of implementation of the management plan by the management entity for these areas. Approval by the City of the long term management plan is a condition precedent to recordation of a final map. The park and open space management plan shall include but not be limited to identification of funding, management responsibilities, and maintenance activities in perpetuity for the neighborhood parks, paseos, common open space areas, and streets within Uptown Newport Planned Community Development Plan. 44. Prior to any Final Map approval, the applicant shall pay all applicable development and Final Map fees associated with but not limited to Community Development Department, Public Works Department, and City Attorney review of CC &Rs, map and plan check, hydrology review, geotechnical and soils reports review, park improvement plan review, grading plan review, traffic and transportation, and construction inspection. 45. Prior to any Final Map approval, the applicant shall submit to the Community Development Director for review and shall obtain City Attorney approval of, a buyer's notification disclosure form, to be given to all buyers and residents upon purchase closing, which indicates the location, if applicable, notification of potential exposure to soil and groundwater contamination, nuisances, noise, risk of upset and hazards, and /or objectionable odors of continued TowerJazz operation. 46. Prior to any Final Map approval, the applicant shall provide separate labor and material improvement bonds or irrevocable letters of credit in a form and amount 142 Planning Commission Resolution No. Page 84 of 103 acceptable to the Director of Public Works for 100% of estimated improvement cost, as prepared by a Registered Civil Engineer and approved by the Director of Public Works, for each of the following, but not limited to, public and private improvements separately: Street improvements, monuments, sidewalks, striping and signage, neighborhood park improvements, street lights, sewer systems, water systems, storm drain and water quality management systems, erosion control, landscaping and irrigation in public rights of way, common open space areas accessible by the public, and off -site improvements required as part of the project. Prior to Recordation of Final Map Note: Multiple Final Maps may be prepared by the applicant and submitted for approval by the City. 47. All Tract Maps shall be recorded. All Maps shall be prepared on the California coordinate system (NAD88). Prior to recordation of the Map, the surveyor /engineer preparing the Map shall submit to the County Surveyor and the City of Newport Beach a digital - graphic file of said map in a manner described in Section 7 -9 -330 and 7 -9 -337 of the Orange County Subdivision Code and Orange County Subdivision Manual, Subarticle 18. The Map to be submitted to the City of Newport Beach shall comply with the City's CADD Standards. Scanned images will not be accepted. 48. Prior to recordation of any Tract map, the surveyor /engineer preparing the map shall tie the boundary of the map into the Horizontal Control System established by the County Surveyor in a manner described in Section s 7 -9 -330 and 7 -9 -337 of the Orange County Subdivision Code and Orange County Subdivision Manual, Subarticle 18. Monuments (one inch iron pipe with tag) shall be set On Each Lot Corner unless otherwise approved by the Subdivision Engineer. Monuments shall be protected in place if installed prior to completion of construction project. 49. Prior to recordation of any Final Map, the applicant shall submit for review and shall obtain the Public Works Director approval of applicable utility maintenance easements for water, electric, telephone as required for the Final Map to the benefits of utility companies. 50. Prior to recordation of the Final Map, the applicant shall show all easements proposed to be granted to the City of Newport Beach (ie. over roads for utilities, ingress and egress, pedestrian easements adjacent to internal streets) 51. Prior to recordation of the Final Map of any portion of the project site, the applicant shall provide an irrevocable offer of dedication to the City for the following as identified on Tentative Tract Map No. 17438: a. Neighborhood parks 1.4-3 Planning Commission Resolution No. Page 85 of 103 b. Easements for public access to common open space areas, public paseos, walkways and internal streets. 52. Prior to recordation of the Final Map of any portion of the project site, the Master Site Development Plan shall be approved by the Planning Commission. Prior to Issuance of Demolition or Grading Permits 53. Prior to the issuance of grading permits, the applicant shall pay any unpaid City administrative costs and unpaid costs incurred by City retained consultants associated with the processing of this application to the City. 54. Prior to the issuance of grading permits the applicant shall pay all applicable City fees which may include but are not limited to map and plan check, water connection, sewer connection, hydrology review, geotechnical and soils reports review, grading plan review, traffic and transportation, and construction inspection. 55. Prior to the issuance of grading permits the applicant shall demonstrate to the satisfaction of the Director of Public Works that all existing survey monuments are located in the field in compliance with AB 1414 for restoration by the Registered Civil Engineer or Land Surveyor in accordance with Section 8771 of the Business and Professions Code. 56. Prior to the issuance of grading permits the limits of grading shown on Tentative Tract Map No. 17438 must be verified by a Geotechnical Engineer. Grading shall not be permitted to extend beyond the limits as indicated on Tentative Tract Map No. 17438 without approval of the Community Development Director. 57. Prior to issuance of grading permits a list of "good housekeeping" practices, consistent with the approved Water Quality Management Plan, shall be submitted by the contractor for incorporation into the long -term post- construction operation of the site to minimize the likelihood that pollutants would be used, stored, or spilled on the site that could impair water quality. The WQMP shall list and describe all structural and non- structural BMPs. In addition the WQMP must also identify the entity responsible for the long term inspection, maintenance, and funding for all structural (and if applicable treatment - control) BMPs. 58. Prior to issuance of grading permits, the applicant shall submit documentation in a form and of a content determined by the Community Development Director that any hazardous contaminated soils or other hazardous materials removed from the project site shall be transported only by a Licensed Hazardous Waste Hauler to approved hazardous materials disposal site, who shall be in compliance with all applicable State and federal requirements, including the U.S. Department of Transportation regulations under 49 CFR (Hazardous Materials Transportation Act), California Department of Transportation (Caltrans) standards, Occupational Safety and Health Administration 19=1 Planning Commission Resolution No. Page 86 of 103 (OSHA) standards, and under 40 CFR 263 (Subtitle C of Resource Conservation and Recovery Act). The Director of Community Development shall verify that only Licensed Haulers who are operating in compliance with regulatory requirements are used to haul hazardous materials. 59. Prior to the issuance of any grading permits, the Community Development Director shall review the grading plan for conformance with the grading shown on the approved tentative map. The grading plans shall be accompanied by geological and soils engineering reports and shall incorporate all information as required by the City. Grading plans shall indicate all areas of grading, including remedial grading, and shall extend to the limits outside of the boundaries of an immediate area of development as required by the City. Grading shall be permitted within and outside of an area of immediate development, as approved by the City, for the grading of public roads, highways, park facilities, infrastructure, and other development - related improvements. Remedial grading for development shall be permitted within and outside of an immediate development area, as approved by the City, to adequately address geotechnical or soils conditions. Grading plans shall provide for temporary erosion control on all graded sites scheduled to remain unimproved for more than 30 days. 60. If the applicant submits a grading plan that deviates from the grading shown on the approved tentative map (specifically with regard to slope heights, slope ratios, pad elevations or configurations), as determined by the Community Development Director, the Community Development Director shall review the plan for a finding of substantial conformance. If the Community Development Director finds the plan not to be in substantial conformance, the applicant shall process a revised tentative map or, if a final map has been recorded, the applicant shall process a new tentative map. A determination of CEQA compliance shall also be required. 61. Prior to the issuance of the first grading permit and /or action that would permit project site disturbance, the applicant shall provide evidence to the City of Newport Beach Police Department that a construction security service or equivalent service shall be established at the construction site along with other measures, as identified by the Police and the Public Works Departments, to be instituted during the grading and construction phase of the project. 62. Prior to issuance of applicable grading permits the applicant shall submit for review and approval by the Municipal Operations Department Director, a 1" =200' Utilities Master Plan prepared by a Registered Civil Engineer consistent with the Uptown Newport Master Development Plans showing all existing and proposed public and private sewer pump stations, force mains, laterals, mains and manholes, domestic water service facilities including gate and butterfly valves, pressure reducing stations, pressure zones, fire hydrants, meters, storm drain facilities to include storm drain mains, laterals, manholes, catch basins, inlets, detention and retention basins, water quality basins and energy dissipaters, outlets, pipe sizes, pipe types fiber optics, electricity, gas and telephone /telecommunications and any other related facilities as 1.4.5 Planning Commission Resolution No. Page 87 of 103 identified by the Municipal Operations Department Director. The Master Utilities Plan shall provide for the following: a. All public utilities shall be constructed within dedicated public rights of way and /or easements or as approved by the Public Works Director. b. The water quality infiltration basins within the neighborhood parks on Lots O and M shall be constructed, offered for dedication to the City as part of the neighborhood parks, and upon acceptance by the City, and shall be privately maintained by the entity identified in the open space management plan. 63. Prior to issuance of applicable grading permits, the applicant shall submit a construction management and delivery plan for each phase of construction to be reviewed and approved by the Public Works Director. Upon approval of the plan, the applicant shall be responsible for implementing and complying with the stipulations set forth in the approved plan. The construction management plan shall include, at a minimum, the following: a. Construction phasing plan. b. Parking plan for construction vehicles and plan for equipment storage. C. Construction area traffic management plan for the project for the issuance of a haul route permit. The traffic management plan shall be designed by a registered Traffic Engineer. The traffic management plan shall identify construction phasing and address traffic control for any temporary street closures, detours, or other disruptions to traffic circulation and public transit routes. The traffic management plan shall identify the routes that construction vehicles shall use to access the site, the hours of construction traffic, traffic controls and detours, vehicle staging areas, and parking areas for the project. Advanced written notice of temporary traffic disruptions shall be provided to emergency service providers and the affected area's businesses and the general public. This notice shall be provided at least two weeks prior to disruptions. Haul operations shall be monitored by the Department of Public Works, and additional restrictions may be applied if traffic congestion problems arise. A staging area shall be designated on -site for construction equipment and supplies to be stored during construction. d. A construction and equipment staging area shall be identified within the project and shall be properly maintained and /or screened to minimize potential unsightly conditions. e. A construction fencing plan to include installation of a six - foot -high screen and security fence to be placed around the construction site during construction. f. A 24 hour hotline number shall be provided and conspicuously posted at all construction sites for complaints or questions regarding construction activities. //IM Planning Commission Resolution No. Page 88 of 103 g. Construction mitigation measures as required by the MMRP. h. A statement that all grading and construction shall comply with NBMC Section 10.28.040 (Noise Ordinance). A statement requiring construction contractors to sweep paved roads within and adjacent to the project site if visible soil materials are carried to the streets. Street sweepers or roadway washing trucks shall comply with SCAQMD Rule 1186 and shall use reclaimed water if available. A statement to be provided to all construction contractors that requires all construction contractors to comply with South Coast Air Quality Management District's (SCAQMD's) Rules 402 and 403 in order to minimize short-term emissions of dust and particulates. SCAQMD Rule 402 requires that air pollutant emissions not be a nuisance off site. SCAQMD Rule 403 requires that fugitive dust be controlled with Best Available Control Measures so that the presence of such dust does not remain visible in the atmosphere beyond the property line of the emission source. This requirement shall be included as notes on the contractor specifications. Table 1 of Rule 403 lists the Best Available Control Measures that are applicable to all construction projects. The measures include, but are not limited to, the following: Clearing and grubbing: Apply water in sufficient quantity to prevent generation of dust plumes. ii. Cut and fill: Pre -water soils prior to cut and fill activities and stabilize soil during and after cut and fill activities. iii. Earth- moving activities: Pre -apply water to depth of proposed cuts; re- apply water as necessary to maintain soils in a damp condition and to ensure that visible emissions do not exceed 100 feet in any direction; and stabilize soils once earth- moving activities are complete. iv. Importing /exporting of bulk materials: Stabilize material while loading to reduce fugitive dust emissions; maintain at least six inches of freeboard on haul vehicles; and stabilize material while transporting to reduce fugitive dust emissions. V. Stockpiles/bulk material handling: Stabilize stockpiled materials; stockpiles within 100 yards of off -site occupied buildings must not be greater than 8 feet in height, must have a road bladed to the top of the pile to allow water truck access, or must have an operational water irrigation system that is capable of complete stockpile coverage. 147 Planning Commission Resolution No. Page 89 of 103 64. Prior to the issuance of grading permits, the applicant shall prepare a Storm Water Pollution Prevention Plan ( SWPPP) and Notice of Intent (NOI) to comply with the Construction General Permit and submit the above to the State Water Quality Control Board for approval and made part of the construction program. The applicant shall provide the City with a copy of the NO] and their application check as proof of filing with the State Water Quality Control Board. The SWPPP shall detail measures and practices that will be in effect during construction to minimize the project's impact on water quality. 65. Prior to issuance of grading permits, the applicant shall prepare and submit a Final Water Quality Management Plan (WQMP) for the proposed project, subject to the approval of the Director of Community Development and Director of Public Works. The WQMP shall provide appropriate Best Management Practices (BMPs) to ensure that no violations of water quality standards or waste discharge requirements occur. The WQMP must also identify the entity responsible for the long -term inspection, maintenance, and funding for all structural (and if applicable Treatment Control) BMPs. Prior to Issuance of Demolition and Building Permits 66. Prior to the issuance of building permits within each development phase of the project, the applicant shall demonstrate to the satisfaction of the Director of Community Development that the Santa Ana Regional Water Quality Control Board has issued a "No Further Action" (NFA) declaration or a Letter of Allowance for residential construction for the portion of the site being developed. 67. Prior to the issuance of a building permit for the construction of residential and commercial uses, the applicant shall pay the required Property Excise Tax to the City of Newport Beach, as set forth in its Municipal Code ( §3.12 et seq.) for public improvements and facilities associated with the City of Newport Beach Fire Department, the City of Newport Beach Public Library, and City of Newport Beach public parks. 68. Prior to the issuance of building permits the applicant shall obtain approval of a plan stating that water for firefighting purposes and an all weather fire access road shall be in place before any combustible materials are placed on site. Fire access roads shall be designed to support the 75,000 pound load of fire apparatus for year round weather conditions. 69. Prior to the issuance of any residential building permit, the applicant shall submit for review and shall obtain the approval of the Community Development Director, plans indicating the location and type of unit address lighting to be installed. 70. Prior to the issuance of building permits, the applicant shall pay applicable fees to the Santa Ana Unified School District Pursuant to Section 65995 of the California Government Code Payment of the adopted fees would provide full and complete 142 Planning Commission Resolution No. Page 90 of 103 mitigation of school impacts. 71. Prior to issuance of any demolition permit, testing for all structures for presence of lead -based paint (LBP) and /or asbestos - containing materials (AGMs) shall be completed. The Asbestos - Abatement Contractor shall comply with notification and asbestos removal procedures outlined in the South Coast Air Quality Management District's (SCAQMD's) Rule 1403 to reduce asbestos - related air quality health risks. SCAQMD Rule 1403 applies to any demolition or renovation activity and the associated disturbance of ACMs. This requirement shall be included on the contractors' specifications and verified by the Director of Community Development. All demolition activities that may expose construction workers and /or the public to ACMs and /or LBP shall be conducted in accordance with applicable regulations, including, but not limited to Title 40 of the Code of Federal Regulations (CFR), Subchapter R (Toxic Substances Control Act); CalOSHA regulations (Title 8 of the California Code of Regulations §1529 [Asbestos] and §1532.1 [Lead]); and SCAQMD Rule 1403 (Asbestos Emissions from Demolition /Renovation Activities). The requirement to adhere to all applicable regulations shall be included in the contractor specifications, and such inclusion shall be verified by the Community Development Director prior to issuance of a demolition permit. 72. Prior to issuance of applicable building permits, the applicant shall submit to the Director of Community Development for review and approval, architectural plans and an accompanying noise study that demonstrates that interior noise levels in the habitable rooms of residential units due to exterior transportation noise sources would be 45 dBA CNEL or less. Where closed windows are required to achieve the 45 dBA CNEL limit, project plans and specifications shall include ventilation as required by the California Building Code. 73. Prior to issuance of building permits for Phase 1, a detailed acoustical study based on architectural plans shall be prepared by a qualified acoustical consultant and submitted to the Community Development Department for review and approval. The study shall demonstrate that all residential units would meet the 65 dBA CNEL exterior noise standard for all patios, balconies, and common outdoor living areas (playgrounds, parks, and swimming pools). The necessary noise reduction may be achieved by implementing noise control measures at the TowerJazz facility and at the receiver locations, as described in detail in the Technical Memorandum provided by Wilson Ihrig and Associates (Appendix J of the FEIR). 74. Prior to issuance of building permits for Phase 2, a detailed acoustical study based on architectural plans shall be prepared by a qualified acoustical consultant and submitted to the Community Development Department for review and approval. The study shall demonstrate that all residential units would meet the 65 dBA CNEL exterior noise standard for all patios, balconies, and common outdoor living areas (playgrounds, parks, and swimming pools). The necessary noise reduction may be achieved by implementing noise control measures at the receiver locations. The final 1-" Planning Commission Resolution No. Page 91 of 103 grading and building plans shall incorporate the require noise barriers (patio enclosure, wall, berm, or combination wall /berm), and the property owner /developer shall install these barriers and enclosures. 75. Prior to issuance of applicable building permits, the applicant shall submit for review and approval by the City of Newport Beach Police Department, development plans for the incorporation of defensible space concepts to reduce demands on police services. Public safety planning recommendations shall be incorporated into the project plans. The applicant shall prepare a list of project features and design components that demonstrate responsiveness to defensible space design concepts. 76. Prior to the issuance of building permits plans shall be submitted to the satisfaction of the Community Development Director to include requirements that all contractor specifications include a note that architectural coatings shall be selected so that the VOC content of the coatings is compliant with SCAQMD Rule 1113. 77. Prior to the issuance of building permits the applicant shall submit for review and approval by the Community Development Director building plans designed to meet or exceed all State Energy Insulation Standards and City of Newport Beach codes in effect at the time of application for building permits. Commonly referred to as Title 24, these standards are updated periodically to allow consideration and possible incorporation of new energy efficiency technologies and methods. Title 24 covers the use of energy- efficient building standards, including ventilation; insulation; construction; and the use of energy- saving appliances, conditioning systems, water heating, and lighting. Plans submitted for building permits shall include written notes or calculations demonstrating compliance with energy standards. 78. Prior to the issuance of building permits for any residential, commercial, or park and recreation use, the applicant shall provide evidence satisfactory to the Fire Department that adequate permanent or temporary fire protection facilities are in place on the job site and are tested prior to placing any combustible material on the job site. 779. Prior to the issuance of the first building permit in Phase 2, evidence of the right to use the Birch Street easement acceptable to the City Attorney shall be provided. Prior to Issuance of Certificates of Use and Occupancy 79-80. Prior to the issuance of certificate of occupancy for any residential unit, the applicant shall demonstrate to the satisfaction of the City of Newport Beach Fire Department that the following disclosures and emergency notification procedures /programs are in place: a. Disclosure to potential Uptown Newport residences that hazardous chemicals are used and stored at the adjacent TowerJazz facility. 150 Planning Commission Resolution No. Page 92 of 103 b. Inclusion of property manager or authorized representative of the Uptown Newport residential community to the emergency notification list of the TowerJazz Business Emergency Plan. C. Program to inform /train the property manager or authorized representative of the Uptown Newport residential community in emergency response and evacuation procedures and to incorporate ongoing coordination between the Uptown Newport representative and TowerJazz to assure proper action in the event of an accident at the facility (shelter in place and /or evacuation routes). d. Update TowerJazz emergency alarm system to include concurrent notification to Uptown residents of chemical release. Provisions of the alarm system and emergency notification procedure shall be reviewed and approved by the City of Newport Beach Fire Department. 84,81. Prior to issuance of certificate of use and occupancy for any residential or commercial use within each phase, the applicant shall complete construction of all applicable roadways, parkways, median and median landscaping, sidewalks, intersection street lights, signage and utilities including but not limited to water, water quality management, sewer, storm drain, fiber optics, gas, electricity, telephone and telecommunications necessary to serve the use and the above facilities shall be operational to serve the use, the extent of which shall be determined by the Public Works and Municipal Operations Departments. 8482. Prior to the issuance of a certificate of use and occupancy for residential dwelling units within Lots 1 and 15 of Phase 1, i) the improvements to the neighborhood park in Phase 1 (Lot O) shall be completed by the applicant, and ii) the CC &Rs, irrevocable offer of dedication, access easements, or other instruments providing for public access and use of the park facilities in perpetuity, and including the timing for opening of the park facilities for public use, shall be recorded to the satisfaction of the Community Development Director. 883. Prior to the issuance of a certificate of use and occupancy for residential dwelling units within Lots 12 and 14 of Phase 2, i) the improvements to the neighborhood park in Phase 2 (Lot M) shall be completed by the applicant, and ii) CC &Rs, irrevocable offer of dedication, access easements, or other instruments providing for public access and use of the park facilities in perpetuity, and including the timing for opening of the park facilities for public use, shall be recorded to the satisfaction of the Director of Community Development. 83-84. Prior to the issuance of certificates of use and occupancy the applicant shall demonstrate to the satisfaction of the Public Works Director that applicable street name signs have been installed. 84.85. Prior to the issuance of a certificate of use and occupancy for any sales center or model home complex, the applicant shall complete construction of roadway 151 Planning Commission Resolution No. Page 93 of 103 improvements adequate to serve the sales center or model home complex to the satisfaction of the Director of Public Works and the Director of Community Development. 86-86. Prior to the issuance of the first certificate of use and occupancy for any residential, commercial, or retail use in the project all applicable master infrastructure improvements identified in the Final SWPPP and WQMP including debris basins, bio- swales, energy dissipaters, drainage pipes, water quality basins and other improvements shall be constructed and the applicant shall provide all necessary dedications, deed restrictions, covenants or other instruments for the long term maintenance of the facilities in a manner meeting the approval of the Director of Public Works. 86:87. Prior to the issuance of certificates of use and occupancy for any residential, commercial, or park and recreation use, fire hydrants shall be installed and tested. Subdivision Improvement Plans 87--88. All subdivision improvement plans shall identify the use of best management practices (BMPs) for erosion control, sediment control, wind erosion control, storm water and non -storm water management, and waste management/pollution control. The BMP's identified for implementation shall demonstrate that potential effects on local site hydrology, runoff, and water quality remain in compliance with all required permits, City policies, and the Project's Water Quality Management Plan and Storm Water Pollution Prevention Plan. 88 89. The applicant shall design and /or construct all required onsite and offsite improvements within each development phase to permanent line and grade in accordance with NBMC Chapter 19.24 (Subdivision Design), with the exception of the deviations from this Chapter as described on TTM No. 17438 and approved by the Public Works Director. 89-90. The applicant shall design and /or construct all required onsite and offsite improvements within each development phase to permanent line and grade in accordance with NBMC Chapter 19.28 (Subdivision Improvement Requirements), with the exception of the deviations from this Chapter as described on TTM No. 17438 and approved by the Public Works Director. 991. The applicant shall design and /or construct all required onsite and offsite improvements witin each development phase to permanent line and grade in accordance with Chapter 19.32(Improvement Plans). 992. Approval of improvement plans shall in no way relieve the applicant or the applicant's engineer of responsibility for the design of the improvements or from any deficiencies resulting from the design, nor from compliance with any tentative map condition of approval. 1152 Planning Commission Resolution No. Page 94 of 103 82-93. The applicant shall design and /or construct all required onsite and offsite improvements witin each development phase to permanent line and grade in accordance with NBMC Chapter 19.36 (Completion of Improvements). 1 83=94. All new utility lines to serve the project shall be installed in underground trenches. 94.95. Intersection design shall be approved by the Director of Public Works and comply with City's sight distance standards. 9&96. All subdivision improvement plans shall include the use of light emitting diode (LED) lights for street lights. gs}97. All subdivision improvement plans shall conform to the following Fire Department requirements: a. Detailed plans of underground fire service mains shall be submitted to the Fire Department for approval prior to installation. These plans shall be a separate submittal to the Fire Department. b. Blue hydrant identification markers shall be placed with new hydrants. C. All weather access roads designed to support the 75,000 pound imposed load of fire apparatus for year round weather conditions shall be installed and made serviceable prior to and during time of construction for emergency personnel. d. Fire apparatus access roads designed to support the 75,000 pound imposed load of fire apparatus for year round weather conditions shall be maintained and identified as per Newport Beach Guideline C.01 Emergency Fire Access and C.02 Fire Lane Identification. e. All security gates shall have knox locks for after hours emergency personnel access to the construction site. 998. Prior to the release of financial security, the applicant shall demonstrate to the satisfaction of the Director of Public Works and the Director of Community Development that the Project CC &Rs have been approved by the City Attorney and the appropriate Association(s) has been formed. 9999. Prior to the release of financial security, the applicant shall demonstrate to the satisfaction of the Director of Public Works that all permanent survey monuments damaged or destroyed during construction are restored. 89-100.Prior to the release of financial security, the applicant shall demonstrate to the satisfaction of the Director of Public Works that all street improvements damaged during construction have been repaired or replaced. 153 Planning Commission Resolution No. Page 95 of 103 4-00-101. Prior to the release of financial security, the applicant shall submit as -built plans prepared by a Registered Civil Engineer depicting all street, traffic signal, sewer, water, and storm drain improvements and street signage and signage placements, traffic markings and painted curbing, and all other required improvements shall be completed to the satisfaction of the Director of Public Works. 494 -:102. Prior to the release of financial security, all domestic water and sewer systems shall be fully tested in the presence of a City staff representative, to verify system performance in accordance with design specifications. 442103. Prior to the release of financial security the applicant shall execute an agreement to the satisfaction of the Director of Public Works and the Director of Community Development which designates the maintenance responsibilities for all landscaping and irrigation systems in the Project. 4104. Prior to the release of financial security the applicant shall submit as -built plans at an appropriate scale to the Recreation and Senior Services Director showing as- built neighborhood park improvements and paseos. 494 -105. Prior to the release of financial security the applicant shall demonstrate to the satisfaction of the Municipal Operations Department Director that all underground public utilities necessary for the construction of residential, park, retail or commercial uses within each development phase to proceed as indicated on Tentative Tract Map No. 17438 have been completed in accordance with the approved Utilities Master Plan and that the as -built plans for said improvements, prepared by a Registered Civic Engineer have been submitted and approved by the Director of the Municipal Operations Department. 106. Consistent with General Plan Policy LU6.15.16, the amount of any credit against in- lieu of parkland dedication fees for recreational facilities within Public Recreational Open Space Areas (e.g. paseos) shall be based on the degree to which recreational facilities complement existing or proposed public park facilities serving the subdivision, and the degree to which recreational facilities within the proposed paseos reduce the burden on existing or proposed public park facilities serving the subdivision as determined by the Community Development Director. In no case shall the total credit exceed 30% of the Parkland Dedication Requirement. 4107. Any document required to be recorded by the terms of these conditions shall be prior and superior to any monetary encumbrance of the project site except for non - delinquent general and special real property taxes and assessments. ��i41r Planning Commission Resolution No. Page 96 of 103 EXHIBIT H TENTATIVE TRACT MAP NO. NT2012 -002 155 co Q � j F Q O O U 0 z ¢ ^ W 0 I.be N O rcd o � �o? Z � <gO < U Z � A m n' LL,�o o " w n �z a 1 U urCJ Z Y © bJ F ` \� SF�c 2 e a ie Vq 2 x ♦ Jd n J. J4 03 as 5y{oq pp Y © bJ F ` \� SF�c 2 e a ie Vq 2 x ♦ Jd n QF .k _B 7 0I 1 V 150 \ hx sAs p3 s n isy b�y9 i€ a $e q _ �pp MUM Y S �� � • ��j�i� g56g5g�g� CC�19' d�. dg F apy� �g 3yBi i� �F9F1 VA �@qp ryfl ��yf)3apg @� �j� ���55��5 i� ��j3 ��yJaSy��a7y��a7p� �r7y ypr 5 nryS �'aA ux�pySnxStl 9 IV 8 @7d3g t 5pi` Ypp `° �nSy Yy gg If' p� 9A 3 �8 ���4911111�1 E5y5yy3lyylyy3 3 g�E��9��E3yy�9�y9YE °YYiY� If' Arabp g� @p III Y4 4 n8oe3 innnon nggrg5.5g5.�99y�yyHy9�99�9919959979 8111 �hy 919 H p@ 11, , @° A 1e 51111 � "aaaa1Na9a5393111191az9 drag€ Hui M i:h za9 p 3 3 a 3gk i e tt8 e 3 5° 58 5 ..� ................,. ».. .x,n O } O ig O O ® © ©+ ® ® IV 495335993'x95;9353 59 aa:ahc QF .k _B 7 0I 1 V 150 Jul n� �9 • I� d ` q�l�cil 6 ! IJI IIr1I 31 c Oo Zwo 9 GL EG a N- r O I`Y I/ I Pi —yll� o Uz U i o � i z � i= Yj g i uY` I� FT �- L I �i p gg I �i — Geyy� A-1 I � i9 o %g . 9I. �m i e �e� w., -i S C _ f a c � 3 z a iz U °I a O w W � I 0 m � o a 'J i e 4 �� NJ, 171 tBPO 91 IeePFII i Planning Commission Resolution No. Page 97 of 103 EXHIBIT I REQUIRED FINDINGS TRAFFIC STUDY NO. TS2012 -005 In accordance with NBMC Section 15.40.030 (Traffic Phasing Ordinance), the following findings and facts in support of such findings are set forth: Finding: A. That a traffic study for the project has been prepared in compliance with this chapter and Appendix A [NBMC Chapter 15.30], Facts in Support of Finding: A -1. A traffic study, entitled Uptown Newport Traffic Impact Analysis, prepared by Kimley- Horn and Associates, Inc., May 2012 and revised in November 2012, were prepared for the Project in compliance with Municipal Code Chapter 15.40 (Traffic Phasing Ordinance and Appendix A). Finding: B. That, based on the weight of the evidence in the administrative record, including the traffic study, one of the findings for approval in subsection (B) [NBMC Section 15.40.030.8.2] can be made. Section 15.40.030.8.2 states: The project is a Comprehensive Phased Land Use Development and Circulation System Improvement Plan with construction of all phases not anticipated to be complete within sixty (60) months of project approval, and a. The project is subject to a development agreement which requires the construction of or contributions to, circulation improvements early in the development phasing program, and b. The traffic study contains sufficient data and analysis to determine if that portion of the project reasonably expected to be constructed and ready for occupancy within sixty (60) months of project approval satisfies the provisions of subsections (8)(1)(a) or (8)(1)(b), and C. The Land Use and Circulation Elements of the General Plan are not made inconsistent by the impact of project trips (including circulation improvements designed to mitigate the impacts of project trips) when added to the trips resulting from development anticipated to occur within the City based on the Land Use Element of the General Plan and Zoning Ordinance, and z15g Planning Commission Resolution No. Page 98 of 103 d. The project is required, during the sixty (60) month period immediately after approval, to construct circulation improvement(s) such that: (1) Project trips will not cause or make worse an unsatisfactory level of traffic service at any impacted primary intersection for which there is a feasible improvement, (2) The benefits resulting from circulation improvements constructed or funded by, or contributions to the preparation or implementation of a traffic mitigation study made by, the project proponent outweigh the adverse impact of project trips at any impacted primary intersection for which there is (are) no feasible improvement(s) that would, if implemented, fully satisfy the provisions of Section 15.40.030 (B)(1)(b). In balancing the adverse impacts and benefits, only the following improvements and /or contributions shall be considered with the greatest weight accorded to the improvements and /or contributions described in subparagraphs (a) or (b): a. Contributions to the preparation of, and /or implementation of some or all of the recommendations in, a traffic mitigation study related to an impacted primary intersection that is initiated or approved by the City Council, b. Improvements, if any, that mitigate the impact of project trips at any impacted primary intersection for which there is (are) no feasible improvement(s) that, if implemented, would fully satisfy the provisions of Section 15.40.030 (B)(1)(b), C. Improvements that mitigate the impacts of project trips on any impacted primary intersection in the vicinity of the project, d. Improvements that mitigate the impacts of project trips on any impacted primary intersection operating, or projected to operate, at or above 0.80 ICU; and (3) The Planning Commission, or City Council on review or appeal finds, by the affirmative vote of five - sevenths (517) of the members eligible to vote, that this chapter is inapplicable to the project because the project will result in benefits that outweigh the project's anticipated negative impact on the circulation system. Facts in Support of Finding: B -1. Based on the weight of the evidence in the administrative record, including the Traffic Study, mitigation measures, and the conditions of approval, all of the findings for approval in Section 15.40.030.B.2 can be made. 1�9 Planning Commission Resolution No. Page 99 of 103 B -2. Phase 1 is projected to generate an additional 5,012 daily trips, 317 during the AM peak hour and 443 during the PM peak hour. At the project's build -out (Phase 2), the Project generates 8,286 daily trips, 542 during the AM peak hour and 727 during the PM peak hour. The Project would shift traffic patterns to and from the site as the Project involves a shift from office and industrial development to residential uses. The Project will consist of primarily residential uses, which will have reverse traffic patterns from existing uses at the site. As the result, while the proposed project results in an overall increase in daily trips, there would be a reduction of trips on some intersection movements and an increase on others in each of the morning and evening peak hours. The net new trips to be added (or subtracted due to the shift from employment to residential) to the street system does not result in any significant impacts to the studied intersections and segments. B -3. The Project design provides for primary and secondary ingress and egress from Jamboree Road, but also includes a third access drive to and from Birch Street, utilizing a non - exclusive access easement established by an express grant of easement recorded in 1978. B -4. The proposed Project meets the requirements for a Comprehensive Phased Land Use Development and Circulation System Improvement Plan as the Project is subject to a Development Agreement and conditions of approval that require the construction of, or contributions to, circulation improvements early in the development phasing program. B -5. The complete Project is not anticipated to be completed within five years approval. The Traffic Study analyzed Phase 1, which is expected to be completed by 2018. Phase 2 of the Project is anticipated to commence in 2017 and be completed in 2021 or later, and therefore requires a separate traffic analysis at a later date prior to recordation of final maps or building permits for Phase 2. The Traffic Study found the Project would not result in a significant impact with the addition of Phase 1 Project trips at the study intersections. B -6. The Traffic Study and FEIR analyzed intersections projected to exceed the Level of Service ( "LOS "), which is a "D" standard except certain designated intersections within the airport area shared with the City of Irvine that permit LOS "E." B -7. Intersection peak hour traffic conditions were evaluated for Year 2018 (existing plus growth plus committed projects) both without and with Phase 1 traffic. The Traffic Study found that the following intersections would operate at an unacceptable level of service both without and with Project Phase 1: Jamboree Road at Michelson Drive (PM: LOS F) 100 Planning Commission Resolution No. Page 100 of 103 All other study intersections would operate at an acceptable LOS in both peak hours. The PFGj Gt +.hied i aGt Of ohASe 4 of WAR-gar4 Ave Rue ARGI Minh Pise, f1.i..e % -9 additieR of then ed r sideRtial trips B -8. The DEIR and Traffic Study found the addition of Project traffic would not cause additional intersections to operate at an unacceptable LOS, and the Project would not result in a significant impact at any study intersection. B -9. The proposed Project does not result in an inconsistency between the Land Use Element and the Circulation Element of the General Plan by the impact of project trips (including circulation improvements designed to mitigate the impacts of project trips) when added to the trips resulting from development anticipated to occur within the City based on the Land Use Element of the General Plan and Zoning Code. The development included in the proposed Project is consistent with the General Plan. B -10. Transportation and traffic impacts would be mitigated to less than significant and no mitigation is required. Finding: C. That the project proponent has agreed to make or fund the improvements, or make the contributions, that are necessary to make the findings for approval and to comply with all conditions of approval. Facts in Support of Finding: C -1. Concept plans depicting the recommended street improvements are included in the resolution of approval and conditions of approval for the Tentative Tract Map for the proposed Project. The Project also will be responsible for the payment of Fair Share fees in accordance with Chapter 15.32 that will be used to fund future planned improvements to the circulation system. Additionally, the Project will be required to pay any applicable fees for the Major Thoroughfare and Bridge Fee Program. 101 Planning Commission Resolution No. Page 101 of 103 EXHIBIT J TRAFFIC STUDY NO. TS2012 -005 Exhibit J is available for review at the Planning Division of Community Development Department or at http : / /newportbeachca.gov /index.aspx ?page =2029 102 Planning Commission Resolution No. Page 102 of 103 EXHIBIT K AFFORDABLE HOUSING IMPLEMENTATION PLAN NO. AH2012 -001 Exhibit K is available for review at the Planning Division of Community Development Department or at httg :Hnewportbeachca.00v /index.aspx ?page =2029 1o3 Planning Commission Resolution No. Page 103 of 103 EXHIBIT L DEVELOPMENT AGREEMENT NO. DA2012 -003 Exhibit L is available for review at the Planning Division of Community Development Department or at hftg:H newi)ortbeachca .gov /index.aspx ?oage =2029 Imil Attachment No. PC 2 Revised Development Agreement 105 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 -3884 Attn: City Clerk (Space Above This Line Is for Recorder's Use Only) This Agreement is recorded at the request and for the benefit of the City of Newport Beach and is exempt from the payment of a recording fee pursuant to Government Code §§ 6103 and 27383. DEVELOPMENT AGREEMENT between CITY OF NEWPORT BEACH and UPTOWN NEWPORT LP MIXIEGAWII ILM11 71771179Z/7904 .7111'1 12/13/2012 03, 1-00 (o' DEVELOPMENT AGREEMENT (Pursuant to California Government Code sections 65864- 65869.5) This DEVELOPMENT AGREEMENT (the "Agreement ") is dated for reference purposes as of the _ day of , 2012 (the "Agreement Date'), and is being entered into by and between the CITY OF NEWPORT BEACH ( "C "), and UPTOWN NEWPORT LP, a Delaware limited partnership ( "Landowner'). City and Landowner are sometimes collectively referred to in this Agreement as the "Parties" and individually as a "Party." RECITALS A. Landowner is the owner of that certain real property located in the City of Newport Beach, County of Orange, State of California commonly referred to as Uptown Newport, located at 4311 -4321 Jamboree Road (APN # 445- 131 -02, 445 - 131 -03), and generally located on the west side of Jamboree Road, between Birch Street and Fairchild Road (the "Property "). The Property is more particularly described in the legal description attached hereto as Exhibit A and is depicted on the site map attached hereto as Exhibit B. B. In order to encourage investment in, and commitment to, comprehensive planning and public facilities financing, strengthen the public planning process and encourage private implementation of the local general plan, provide certainty in the approval of projects in order to avoid waste of time and resources, and reduce the economic costs of development by providing assurance to property owners that they may proceed with projects consistent with existing land use policies, rules, and regulations, the California Legislature adopted California Government Code sections 65864- 65869.5 (the "Development Agreement Statute ") authorizing cities and counties to enter into development agreements with persons or entities having a legal or equitable interest in real property located within their jurisdiction. C. On March 13, 2007, the City Council adopted Ordinance No. 2007 -6, entitled "Ordinance Amending Chapter 15.45 of City of Newport Beach Municipal Code Regarding Development Agreements" (the "Development Agreement Ordinance "). This Agreement is consistent with the Development Agreement Ordinance. D. As detailed in Section 4 of this Agreement and the Development Plans (as defined herein), Landowner has agreed to provide the following significant public benefits as consideration for this Agreement: • Payment of a public benefit fee in the sum of thirty -two thousand five hundred dollars ($32,500.00) per residential dwelling unit developed as part of the Project (as defined herein), including an annual adjustment to the public benefit fee based on the Consumer Price Index ( "CPI"). • Park land dedication and improvements consistent with applicable State law and Municipal Code provisions, including the dedication and improvement of over two (2) acres of on -site public parkland. • Perpetual private maintenance of over two (2) acres of on -site public parks. 12/13/2012 Q -1- 1O7 • Improvement of private open space, including paseos and urban plazas that will be accessible to the public and connect the Project and surrounding properties to promote connectivity and pedestrian travel in the Airport Area. • Remediation of soil and groundwater contamination on the Property that has existed on -site since the mid- 1980's. • Reduction in greenhouse gases generated within the Airport Area. • Reduction in electric, gas, water and sewer utility usage through the redevelopment of an existing industrial manufacturing site into a residential mixed use project. • Reduction of urban runoff volumes and implementation of stormwater runoff water quality facilities that will improve the quality of stormwater runoff entering the Newport Back Bay. • Construction of affordable housing units within the Project that will provide affordable housing opportunities to Newport Beach residents. E. This Agreement is consistent with the City of Newport Beach General Plan, including without limitation the General Plan's designation of the Property as "Mixed -Use Horizontal -2," Airport Business Area Integrated Conceptual Development Plan, and the Uptown Newport Planned Community Development Plan that is being adopted and approved by the City Council concurrently with its approval of this Agreement in order to establish appropriate zoning to regulate land use and development of the Property consistent with the General Plan. F. In recognition of the significant public benefits that this Agreement provides, the City Council has found that this Agreement: (i) is consistent with the City of Newport Beach General Plan as of the date of this Agreement; (ii) is in the best interests of the health, safety, and general welfare of City, its residents, and the public; (iii) is entered into pursuant to, and constitutes a present exercise of, City's police power; (iv) is consistent and has been approved consistent with the Final Environmental Impact Report for the City of Newport Beach General Plan 2006 Update (State Clearinghouse No. 2006011119) and the final Environmental Impact Report (No. ER2012 -001) (SCH #2010051094) ( "EIR ") that has been certified or is being certified for approval by the City Council on or before the Agreement Date, both of which analyze the environmental effects of the proposed development of the Project on the Property, and all of the findings, conditions of approval and mitigation measures related thereto; and (v) is consistent and has been approved consistent with provisions of California Government Code section 65867 and City of Newport Beach Municipal Code chapter 15.45. G. On , 2012, City's Planning Commission held a public hearing on this Agreement, made findings and determinations with respect to this Agreement, and recommended to the City Council that the City Council approve this Agreement. H. On , 2012, the City Council also held a public hearing on this Agreement and considered the Planning Commission's recommendations and the testimony and information submitted by City staff, Landowner, and members of the public. On 2012, consistent with applicable provisions of the Development Agreement 12/13/2012 Q 2 i Statute and Development Agreement Ordinance, the City Council adopted its Ordinance No. (the "Adopting Ordinance "), finding this Agreement to be consistent with the City of Newport Beach General Plan and approving this Agreement. AGREEMENT NOW, THEREFORE, City and Landowner agree as follows: 1. Definitions. In addition to any terms defined elsewhere in this Agreement, the following terms when used in this Agreement shall have the meanings set forth below: "Action" shall have the meaning ascribed in Section 8.10 of this Agreement. "Adopting Ordinance" shall mean City Council Ordinance No. approving and adopting this Agreement. "Agreement" shall mean this Development Agreement, as the same may be amended from time to time. "Agreement Date" shall mean the date first written above, which date is the date the City Council adopted the Adopting Ordinance. "CEO 11 shall mean the California Environmental Quality Act (California Public Resources Code sections 21000 - 21177) and the implementing regulations promulgated thereunder by the Secretary for Resources (California Code of Regulations, Title 14, section 15000 et seq.), as the same may be amended from time to time. "City" shall mean the City of Newport Beach, a California charter city, and any successor or assignee of the rights and obligations of the City of Newport Beach hereunder. "City Council" shall mean the governing body of City. "City's Affiliated Parties" shall have the meaning ascribed in Section 10.1 of this Agreement. "Claim" shall have the meaning ascribed in Section 10.1 of this Agreement. "CPI Index" shall mean the Consumer Price Index published from time to time by the United States Department of Labor for all urban consumers (all items) for the smallest geographic area that includes the City or, if such index is discontinued, such other similar index as may be publicly available that is selected by City in its reasonable discretion. "Cure Period" shall have the meaning ascribed in Section 8.1 of this Agreement. "Default" shall have the meaning ascribed to that term in Section 8.1 of this Agreement. "Develov" or "Development" shall mean to improve or the improvement of the Property for the purpose of completing the structures, improvements, and facilities comprising the Project, 12/13/2013 Q 3 log including but not limited to: grading; the construction of infrastructure and public facilities related to the Project, whether located within or outside the Property; the construction of all of the private improvements and facilities comprising the Project; the preservation or restoration, as required of natural and man -made or altered open space areas; and the installation of landscaping. The terms "Develop" and "Development," as used herein, do not include the maintenance, repair, reconstruction, replacement, or redevelopment of any structure, improvement, or facility after the initial construction and completion thereof. "Development Agreement Ordinance" shall mean Chapter 15.45 of the City of Newport Beach Municipal Code. "Development Agreement Statute" shall mean California Government Code sections 65864- 65869.5, inclusive. "Development Exactions" shall mean any requirement of City in connection with or pursuant to any ordinance, resolution, rule, or official policy for the dedication of land, the construction or installation of any public improvement or facility, or the payment of any fee or charge in order to lessen, offset, mitigate, or compensate for the impacts of Development of the Project on the environment or other public interests. "Development Plan" shall mean thrall of the land use entitlements, approvals and permits approved by the City for the Project on or before the Agreement Date, as the same may be amended from time to time consistent with this Agreement. Such land use entitlements, approvals and permits include, without limitation, the following: (1) the Development rights as provided under this Agreement; (2) Uptown Newport Planned Community Development Plan Adoption No. PC2012 -001 which consists of Land Uses, Development Standards and Procedures (dated November 30, 2012), Design Guidelines (dated November 30, 2012 ), and Phasing Plan (dated November 30, 2012); (3) Planned Community Development Plan Amendment No. PD2011 -003; (4) Tentative Tract Map No. NT2012 -002; (5) Affordable Housing Implementation Plan No. AH2O12 -001; (6) Traffic Study No. TS2012 -005; (7) Site Plan 9 -19- 2012); (11) Environmental Impact Report No. ER2012 -001 (SCH #2010051094); and (12) all conditions of approval and all mitigation-measures approved for the Project on or before the Agreement Date. "Development Regulations" shall mean the following regulations as they are in effect as of the Effective Date and to the extent they govern or regulate the development of the Property, but excluding any amendment or modification to the Development Regulations adopted, approved, or imposed after the Effective Date that impairs or restricts Landowner's rights set forth in this Agreement, unless such amendment or modification is expressly authorized by this Agreement or is agreed to by Landowner in writing: the General Plan; the Development Plan; and, to the extent not expressly superseded by the Development Plan or this Agreement, all other land use and subdivision regulations governing the permitted uses, density and intensity of use, design, improvement, and construction standards and specifications, procedures for obtaining required City permits and approvals for development, and similar matters that may apply to Development of the Project on the Property during the Term of this Agreement that are set forth in Title 15 of the Municipal Code (buildings and construction), Title 19 of the Municipal Code (subdivisions and inclusionary housing), and Title 20 of the Municipal Code (planning, zoning and density bonus), but specifically excluding all other sections of the Municipal Code, including without limitation Title 5 of the Municipal Code (business licenses and regulations). 12/13/2012 0 'T 1j 0 Notwithstanding the foregoing, the term "Development Regulations," as used herein, does not include any City ordinance, resolution, code, rule, regulation or official policy governing any of the following: (i) the conduct of businesses, professions, and occupations; (ii) taxes and assessments; (iii) the control and abatement of nuisances; (iv) the granting of encroachment permits and the conveyance of rights and interests which provide for the use of or the entry upon public property; or (v) the exercise of the power of eminent domain. "Effective Date" shall mean the latest of the following dates, as applicable: (i) the date that is thirty (30) days after the Agreement Date; (ii) if a referendum concerning the Adopting Ordinance or any of the Development Regulations approved on or before the Agreement Date is timely qualified for the ballot and a referendum election is held concerning the Adopting Ordinance or any of such Development Regulations, the date on which the referendum is certified resulting in upholding and approving the Adopting Ordinance and such Development Regulations and becomes effective, if applicable; (iii) if a lawsuit is timely filed challenging the validity or legality of the Adopting Ordinance, this Agreement, and /or any of the Development Regulations approved on or before the Agreement Date, the date on which said challenge is finally resolved in favor of the validity or legality of the Adopting Ordinance, this Agreement, and/or the applicable Development Regulations, whether such finality is achieved by a final non- appealable judgment, voluntary or involuntary dismissal (and the passage of any time required to appeal an involuntary dismissal), or binding written settlement agreement. Promptly after the Effective Date occurs, the Parties agree to cooperate in causing an appropriate instrument to be executed and recorded against the Property memorializing the Effective Date. "Environmental Laws" means all federal, state, regional, county, municipal, and local laws, statutes, ordinances, rules, and regulations which are in effect as of the Agreement Date, and all federal, state, regional, county, municipal, and local laws, statutes, rules, ordinances, rules, and regulations which may hereafter be enacted and which apply to the Property or any part thereof, pertaining to the use, generation, storage, disposal, release, treatment, or removal of any Hazardous Substances, including without limitation the following: the Comprehensive Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601, et sue., as amended ( "CERCLA "); the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901, et sue., as amended ( "RCRA "); the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C. Sections 11001 et sea., as amended; the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et sue., as amended; the Clean Air Act, 42 U.S.C. Sections 7401 et seq., as amended; the Clean Water Act, 33 U.S.C. Section 1251, et sec ., as amended; the Toxic Substances Control Act, 15 U.S.C. Sections 2601 et seq., as amended; the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et seq., as amended; the Federal Safe Drinking Water Act, 42 U.S.C. Sections 300f et seq., as amended; the Federal Radon and Indoor Air Quality Research Act, 42 U.S.C. Sections 7401 et sea., as amended; the Occupational Safety and Health Act, 29 U.S.C. Sections 651 et seq., as amended; and California Health and Safety Code Section 25100, et M. "General Plan" shall mean City's 2006 General Plan adopted by the City Council on July 25, 2006, by Resolution No. 2006 -76, excluding any amendment after the Effective Date that impairs or restricts Landowner's rights set forth in this Agreement, unless such amendment is expressly authorized by this Agreement, is authorized by Sections 8 or 9, or is specifically 12/13/2012 Q 5 -17z agreed to by Landowner. The Land Use Plan of the Land Use Element of the General Plan was approved by City voters in a general election on November 7, 2006. "Hazardous Substances" means any toxic substance or waste, pollutant, hazardous substance or waste, contaminant, special waste, industrial substance or waste, petroleum or petroleum- derived substance or waste, or any toxic or hazardous constituent or additive to or breakdown component from any such substance or waste, including without limitation any substance, waste, or material regulated under or defined as "hazardous" or "toxic" under any Environmental Law. "Landowner" shall mean Uptown Newport LP, a Delaware limited partnership, and any successor or assignee to all or any portion of the right, title, and interest of Uptown Newport LP in and to ownership of all or a portion of the Property. "Mortgage" shall mean a mortgage, deed of trust, sale and leaseback arrangement, or any other form of conveyance in which the Property, or a part or interest in the Property, is pledged as security and contracted for in good faith and for fair value. "Mortgagee" shall mean the holder of a beneficial interest under a Mortgage or any successor or assignee of the Mortgagee. "Notice of Default" shall have the meaning ascribed in Section 8.1 of this Agreement. "Party" or "Parties" shall mean either City or Landowner or both, as determined by the context. "Project" shall mean all on -site and off -site improvements that Landowner is authorized and/or required to construct with respect to each parcel of the Property, as provided in this Agreement and the Development Regulations, as the same may be modified or amended from time to time consistent with this Agreement and applicable law. "Property' is described in Exhibit A and depicted on Exhibit B. "Public Benefit Fee" shall have the meaning ascribed in Section 3.1 of this Agreement. "Subsequent Development Approvals" shall mean all discretionary development and building approvals that Landowner is required to obtain to Develop the Project on and with respect to the Property after the Agreement Date consistent with the Development Regulations and this Agreement, with the understanding that except as expressly set forth herein City shall not have the right subsequent to the Effective Date and during the Term of this Agreement to adopt or impose requirements for any such Subsequent Development Approvals that do not exist as of the Agreement Date. "Term" shall have the meaning ascribed in Section 2.4 of this Agreement. "Termination Date" and "Lot Termination Date" shall have the meaning ascribed in Section 2.4 of this Agreement. "Transfer" shall have the meaning ascribed in Section 11 of this Agreement. 12/13/2012 0 n. 172 2. General Provisions. 2.1 Plan Consistency, Zoning Implementation. This Agreement and the Development Regulations applicable to the Property will cause City's zoning and other land use regulations for the Property to be consistent with the General Plan. 2.2 Binding Effect of Agreement. The Property is hereby made subject to this Agreement. Development of the Property is hereby authorized and shall be carried out in accordance with the terms of this Agreement. 2.3 Landowner Representations and Warranties Regarding Ownership of the Property and Related Matters Pertaining to this Agreement. Landowner and each person executing this Agreement on behalf of Landowner hereby represents and warrants to City as follows: (i) that Landowner is the owner of the fee simple title to the Property; (ii) if Landowner or any co -owner comprising Landowner is a legal entity that such entity is duly formed and existing and is authorized to do business in the State of California; (iii) if Landowner or any co -owner comprising Landowner is a natural person that such natural person has the legal right and capacity to execute this Agreement; (iv) that all actions required to be taken by all persons and entities comprising Landowner to enter into this Agreement have been taken and that Landowner has the legal authority to enter into this Agreement; (v) that Landowner's entering into and performing its obligations set forth in this Agreement will not result in a violation of any obligation, contractual or otherwise, that Landowner or any person or entity comprising Landowner has to any third party; (vi) that neither Landowner nor any co- owner comprising Landowner is the subject of any voluntary or involuntary petition; and (vii) that Landowner has no actual knowledge of any pending or threatened claims of any person or entity affecting the validity of any of the representations and warranties set forth in clauses (i)- (vi), inclusive, or affecting Landowner's authority or ability to enter into or perform any of its obligations set forth in this Agreement. 2.4 Term. The term of this Agreement (the "Term ") shall commence on the Effective Date and shall terminate on the "Termination Date." Notwithstanding any other provision set forth in this Agreement to the contrary, if either Party reasonably determines that the Effective Date of this Agreement will not occur because (i) the Adopting Ordinance or any of the Development Regulations approved on or before the Agreement Date for the Project has/have been disapproved by City's voters at a referendum election or (ii) a fmal non - appealable judgment is entered in a judicial action challenging the validity or legality of the Adopting Ordinance, this Agreement, and/or any of the Development Regulations for the Project approved on or before the Agreement Date such that this Agreement and/or any of such Development Regulations is /are invalid and unenforceable in whole or in such a substantial part that the judgment substantially impairs such Party's rights or substantially increases its obligations or risks hereunder or thereunder, then such Party, in its sole and absolute discretion, shall have the right to terminate this Agreement upon delivery of a written notice of 12/13/2013 v3 7 1J 3 termination to the other Party, in which event neither Party shall have any further rights or obligations hereunder except that Landowner's indemnity obligations set forth in Article 10 shall remain in full force and effect and shall be enforceable, and the Development Regulations applicable to the Project and the Property only (but not those general Development Regulations applicable to other properties in the City) shall similarly be null and void at such time. The Termination Date shall be the earliest of the following dates: (i) the fifteenth (15th) anniversary of the Effective Date, as said date may be extended in accordance with Section 5.1 of this Agreement; (ii) such earlier date that this Agreement may be terminated in accordance with Articles 5, 7, and /or Section 8.3 of this Agreement and/or Sections 65865.1 and/or 65868 of the Development Agreement Statute; (iii) as to any separate legal lot within the Property (but not as to the balance of the Property or the portion thereof that remains subject to this Agreement at such time), upon the "Lot Termination Date" (defined below); or (iv) completion of the Project in accordance with the terms of this Agreement, including Owner's complete satisfaction, performance, and payment, as applicable, of all Development Exactions, the issuance of all required final occupancy permits, and acceptance by City or applicable public agency(ies) or private entity(ies) of all required offers of dedication. As used herein, the term "Lot Termination Date" for any separate legal lot within the Property means the date on which all of the following conditions have been satisfied with respect to said lot: (i) the lot has been finally subdivided and sold or leased (for a period longer than one year), individually or in a "bulk" of four or fewer lots, to a member of the public or other ultimate user; (ii) a final Certificate of Occupancy or "Release of Utilities" has been issued for the building or buildings approved for construction on said lot; and (iii) the duties under this Agreement and the Development Plan have been fully satisfied with respect to said lot. Notwithstanding any other provision set forth in this Agreement to the contrary, the provisions set forth in Article 10 and Section 13.10 (as well as any other Landowner obligations set forth in this Agreement that are expressly written to survive the Termination Date) shall survive the Termination Date of this Agreement. 3. Public Benefits 3.1 Public Benefit Fee. As consideration for City's approval and performance of its obligations set forth in this Agreement, Landowner shall pay to City a fee that shall be in addition to any other fee or charge to which the Property and the Project would otherwise be subject (herein, the "Public Benefit Fee ") in the sum of Thirty -Two Thousand Five Hundred Dollars ($32,500.00) per residential dwelling unit Developed as part of the Project, with the unpaid balance of said Public Benefit Fee increased beginning on January 1, 2015, by the percentage increase in the CPI Index between the Effective Date and said January I" date (the first "Adjustment Date ") and thereafter with the unpaid balance of said Public Benefit Fee increased on each subsequent January 1 during the Term of this Agreement (each, an "Adjustment Date ") by the percentage increase in the CPI Index in the year prior to the applicable Adjustment Date. The amount of the percentage increase in the CPI Index on the applicable Adjustment Dates shall in each instance be calculated based on the then most recently available CPI Index figures such that, for example, if the Effective Date of this Agreement falls on July 1 and the most recently available CPI Index figure 12/13/2013 v3 8 174 on the first Adjustment Date (January 1 of the following year) is the CPI Index for November of the preceding year, the percentage increase in the CPI Index for that partial year (a 6 -month period) shall be calculated by comparing the CPI Index for November of the preceding year with the CPI Index for May of the preceding year (a 6 -month period). In no event, however, shall application of the CPI Index reduce the amount of the Public Benefit Fee (or unpaid portion thereof) below the amount in effect prior to any applicable Adjustment Date. Landowner shall pay the Public Benefit Fee on a per unit basis prior io the issuanee of first building p fmit r at the time each residential building permit is issued. Notwithstanding any other provision set forth in this Agreement to the contrary, during the Term of this Agreement City shall not increase the Public Benefit Fee except pursuant to the CPI Index as stated in this Section 3.1. Landowner acknowledges by its approval and execution of this Agreement that it is voluntarily agreeing to pay the Public Benefit Fee, that its obligation to pay the Public Benefit Fee is an essential term of this Agreement and is not severable from City's obligations and Landowner's vesting rights to be acquired hereunder, and that Landowner expressly waives any constitutional, statutory, or common law right it might have in the absence of this Agreement to protest or challenge the payment of such fee on any ground whatsoever, including without limitation pursuant to the Fifth and Fourteenth Amendments to the United States Constitution, California Constitution Article I Section 19, the Mitigation Fee Act (California Government Code Section 66000 et seq.), or otherwise. In addition to any other remedy set forth in this Agreement for Landowner's default, if Landowner shall fail to timely pay any portion of the Public Benefit Fee when due City shall have the right to withhold issuance of any further building permits, occupancy permits, or other development or building permits for the Project. 3.2 Other Public Benefits. In addition to the Public Benefit Fee, the direct and indirect benefits City expects to receive pursuant to this Development Agreement are as follows: 3.2.1 Park Land Dedication and Improvements. Based upon the number of residential dwelling units approved in the Development Plan, City calculated that Landowner's park land dedication for the Project pursuant to the City General Plan, Government Code Section 66477 ( "Quimby Act ") and Municipal Code Chapter 19.52 is 13.62 acres. City acknowledges that Landowner's performance of its obligations as set forth in this section satisfies all of Landowner's General Plan, Quimby Act and Municipal Code Chapter 19.52 obligations governing park land dedication and fees. City acknowledges that Landowner shall be eligible to receive credit against the payment of fees or dedication of land consistent with the General Plan, Quimby Act and Municipal Code Chapter 19.52. As of the Effective Date, the established fair market value per acre figure used in assessing in -lieu of park dedication fees equals Two Million Five Hundred Thousand Dollars ($2,500,000). Landowner fees and credit shall be based on the established Two Million Five Hundred Thousand Dollars ($2,500,000) per acre. Landowner shall undertake the following: i. On -Site Parks. Landowner shall construct and improve two (2), one (1) acre parks within the Property pursuant to the Development Plan. Landowner shall offer the two (2) on -site parks to the City for dedication in fee simple, and City shall accept Landowner's offer for dedication provided that the parks have been completed in accordance with the requirements of the Development Plan. The parks may be offered for dedication and 12/13/2012 Q 9 175 accepted by the City either together as one action or separately at different times. The two (2) parks shall be privately maintained (by Landowner or the a-- privat,--Mntaster Association as defined in the Development Plan) in perpetuity and in accordance with the Development Plan as set forth in a separate written maintenance and license agreement approved as to form by the City Attomey. Such agreement shall migrants Landowner and/or the a—private fnMaster Asssociation access to the parks and the park facilities, including drainage and stormwater runoff facilities, for operation and maintenance. The maintenance and license agreement shall also provide for Landowner or Mrrtaster Aassociation's responsibility for maintaining stormwater and water quality improvements in perpetuity and in accordance with the Development Plan. Landowner shall be eligible to receive credit against the payment of fees or dedication of land for park construction and dedication. The dollar amount of the credit shall be based on land value and final park construction and improvement costs, (excluding land value), which shall be review and approved by the Community Development Director and shall include, but not be limited to, the cost to design, engineer, construct, install, supervise and inspect the park and improvements, including any permit and inspection fees to be paid to City with respect thereto and the cost of obtaining and maintaining in effect security instruments for the work. The credit shall be determined by the Community Development Director at the time the City accepts the offer of dedication. ii. Public Recreational Open Space Areas. Landowner shall construct and improve public recreational open space areas pursuant to the Development Plan. Public recreational open space areas shall be open to the public but privately owned and maintained by Landowner or a private master association in perpetuity and in accordance with the Development Plan. Pursuant to General Plan land use policy 6.15.16, Landowner may be eligible to receive up to thirty percent (30 %) credit against the payment of fees or dedication of land for such open space recreational areas. The dollar amount of the credit shall be based on land value established by multiplying the eligible acreage by Two Million Five Hundred Thousand Dollars ($2,500,000). The percentage credit and the eligible acreage shall be determined by the Community Development Director at the time final improvement plans are approved. The acreage of open space that is accessible to the public during daylight hours, visible from public rights -of -way and of sufficient size to accommodate recreational use by the public may be eligible for credit. Public open space recreational area construction costs shall not be considered for credit. iii. Private Recreational Amenities. Landowner shall construct and improve private recreational amenities and open space pursuant to the Development Plan. Private recreational amenities shall be privately owned and maintained in perpetuity by Landowner or a private master association. For private recreational amenities, Landowner may be eligible to receive up to twenty percent (20 %) credit against the payment of fees or dedication of land. The dollar amount of the credit shall be based on land value established by multiplying the eligible acreage by Two Million Five Hundred Thousand Dollars ($2,500,000). The percentage credit and the eligible acreage shall be determined by the Community Development Director at the time building plans are submitted. Credited private recreational facilities include active recreation facilities such as playfields, turfed play areas, tot lots, recreation buildings, swimming pools and playing courts, and similar facilities. Privately maintained bicycle or hiking trails that connect to trails outside the Property and which are open to the public shall be eligible. Passive open space, such as setback areas and passive greenbelts shall not be eligible. 12/13/2012 Q to 170 iv. In -lieu of parkland dedication fees shall be paid to the City prior to the issuance of building permits. Payment shall be made for all units included on any final map(s) at the time that the first building permit is issued for any single unit included on a final map(s). The fee amount shall be based on the pro -rated gross acreage of the final map minus any parkland dedication and applicable credits for recreational improvements approved by the City pursuant to the General Plan and the Subdivision Code within the area encompassed by the final map. For example, if a final map encompasses 10 acres of the 25.05 acre planned community (or 39.92% of the total acreage), the fee required prior to final map recordation would be 39.92% of the 13.62 acre parkland dedication requirement minus any parkland dedication and any approved credits for recreational improvements. 3.2.2 AHIP. The Parties have agreed to an neget ate °na °�Affordable Housing Implementation Plan No. AH2012- 001(the "AHIP ") to identify the manner in which ProjectI& is to satisfyae4eff-&f the City's affordable housing requirements, pursuant to Municipal Code Chapter 19.53 (Inclusionary Housing) and Chapter 20.32 (Density Bonus). Landowner agrees to implement the AHIP. 3.2.3 Undergrounding of Electrical Lines City and Landowner may cooperate in good faith with each other in connection with the formation of an assessment district, if any, and construction of underground utility lines. 4. Development of Project. 4.1 Applicable Regulations; Landowner's Vested Rights and City's Reservation of Discretion With Respect to Subsequent Development Approvals. Other than as expressly set forth in this Agreement, during the Term of this Agreement, (i) Landowner shall have the vested right to Develop the Project on and with respect to the Property in accordance with the terms of the Development Regulations and this Agreement and (ii) City shall not prohibit or prevent development of the Property on grounds inconsistent with the Development Regulations or this Agreement. Notwithstanding the foregoing, nothing herein is intended to limit or restrict City's discretion with respect to (i) review and approval requirements contained in the Development Regulations, (ii) exercise of any discretionary authority City retains under the Development Regulations, (iii) the approval, conditional approval, or denial of any Subsequent Development Approvals that are required for Development of the Project as of the Effective Date, or (iv) any environmental approvals that may be required under CEQA or any other federal or state law or regulation in conjunction with any Subsequent Development Approvals that may be required for the Project, and in this regard, as to future actions referred to in clauses (i) -(iv) of this sentence, City reserves its full discretion to the same extent City would have such discretion in the absence of this Agreement. In addition, it is understood and agreed that nothing in this Agreement is intended to vest Landowner's rights with respect to any laws, regulations, rules, or official policies of any other governmental agency or public utility company with jurisdiction over the Property or the Project; or any applicable federal or state laws, regulations, rules, or official policies that may be inconsistent with this Agreement and that override or supersede the provisions set forth in this Agreement, and regardless of whether such overriding or superseding laws, regulations, rules, or 12/13/2012 Q I I 177 official policies are adopted or applied to the Property or the Project prior or subsequent to the Agreement Date. Landowner has expended and will continue to expend substantial amounts of time and money planning and preparing for Development of the Project. Landowner represents and City acknowledges that Landowner would not make these expenditures without this Agreement, and that Landowner is and will be making these expenditures in reasonable reliance upon its vested rights to Develop the Project as set forth in this Agreement. Landowner may apply to City for permits or approvals necessary to modify or amend the Development specified in the Development Regulations, provided that the request does not propose an increase in the maximum density, intensity, height, or size of proposed structures, or a change in use that generates more peak hour traffic or more daily traffic and, in addition, Landowner may apply to City for approval of minor amendments to existing tentative tract maps, tentative parcel maps, or associated conditions of approval, consistent with City of Newport Beach Municipal Code section 19.12.090. This Agreement does not constitute a promise or commitment by City to approve any such permit or approval, or to approve the same with or without any particular requirements or conditions, and City's discretion with respect to such matters shall be the same as it would be in the absence of this Agreement. 4.2 No Conflicting Enactments. Except to the extent City reserves its discretion as expressly set forth in this Agreement, during the Term of this Agreement City shall not apply to the Project or the Property any ordinance, policy, rule, regulation, or other measure relating to Development of the Project that is enacted or becomes effective after the Effective Date to the extent it conflicts with this Agreement. This Section 4.2 shall not restrict City's ability to enact an ordinance, policy, rule, regulation, or other measure applicable to the Project pursuant to California Government Code Section 65866 consistent with the procedures specified in Section 4.3 of this Agreement. In Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, the California Supreme Court held that a construction company was not exempt from a city's growth control ordinance even though the city and construction company had entered into a consent judgment (tantamount to a contract under California law) establishing the company's vested rights to develop its property consistent with the zoning. The California Supreme Court reached this result because the consent judgment failed to address the timing of development. The Parties intend to avoid the result of the Pardee case by acknowledging and providing in this Agreement that Landowner shall have the vested right to Develop the Project on and with respect to the Property at the rate, timing, and sequencing that Landowner deems appropriate within the exercise of Landowner's sole subjective business judgment, provided that such Development occurs in accordance with this Agreement and the Development Regulations, notwithstanding adoption by City's electorate of an initiative to the contrary after the Effective Date. No City moratorium or other similar limitation relating to the rate, timing, or sequencing of the Development of all or any part of the Project and whether enacted by initiative or another method, affecting subdivision maps, building permits, occupancy certificates, or other entitlement to use, shall apply to the Project to the extent such moratorium or other similar limitation restricts Landowner's vested rights in this Agreement or otherwise conflicts with the express provisions of this Agreement. 4.3 Reservations of Authority. 12/13/2012 Q 12 178 Notwithstanding any other provision set forth in this Agreement to the contrary, the laws, rules, regulations, and official policies set forth in this Section 4.3 shall apply to and govern the Development of the Project on and with respect to the Property. 4.3.1 Procedural Regulations. Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals, and any other matter of procedure shall apply to the Property, provided that such procedural regulations are adopted and applied City-wide or to all other properties similarly situated in City. 4.3.2 Processing and Permit Fees. City shall have the right to charge and Landowner shall be required to pay all applicable processing and permit fees to cover the reasonable cost to City of processing and reviewing applications and plans for any required Subsequent Development Approvals, building permits, excavation and grading permits, encroachment permits, and the like, for performing necessary studies and reports in connection therewith, inspecting the work constructed or installed by or on behalf of Owner, and monitoring compliance with any requirements applicable to Development of the Project, all at the rates in effect at the time fees are due. 4.3.3 Consistent Future City Regulations. City ordinances, resolutions, regulations, and official policies governing Development which do not conflict with the Development Regulations, or with respect to such regulations that do conflict, where Landowner has consented in writing to the regulations, shall apply to the Property. 4.3.4 Development Exactions Applicable to Property. During the Term of this Agreement, Landowner shall be required to satisfy and pay all Development Exactions at the time performance or payment is due to the same extent and in the same amount(s) that would apply to Landowner and the Project in the absence of this Agreement; provided, however, that to the extent the scope and extent of a particular Development Exaction for the Project has been established and fixed by City in this Agreement or the conditions of approval for any of the Development Regulations approved on or before the Agreement Date City shall not alter, increase, or modify said Development Exaction in a manner that is inconsistent with such Development Regulations without Landowner's prior written consent or as may be otherwise required pursuant to overriding federal or state laws or regulations (Section 4.3.5 hereinbelow). In addition, nothing in this Agreement is intended or shall be deemed to vest Landowner against the obligation to pay any of the following (which are not included within the definition of "Development Exactions ") in the full amount that would apply in the absence of this Agreement: (i) City's normal fees for processing, environmental assessment and review, tentative tract and parcel map review, plan checking, site review and approval, administrative review, building permit, grading permit, inspection, and similar fees imposed to recover City's costs associated with processing, reviewing, and inspecting project applications, plans, and specifications; (ii) fees and charges levied by any other public agency, utility, district, or joint powers authority, regardless of whether City collects those fees and charges; or (iii) community facility district special taxes or special district assessments or similar assessments, business license fees, bonds or other security required for public improvements, transient occupancy taxes, sales taxes, property taxes, sewer lateral connection fees, water service connection fees, new water meter fees, and the Property Development Tax payable under Section 3.12 of City's Municipal Code. 12/13/2012 Q 13 2�" 4.3.5 Overriding Federal and State Laws and Regulations. Federal and state laws and regulations that override Landowner's vested rights set forth in this Agreement shall apply to the Property, together with any City ordinances, resolutions, regulations, and official policies that are necessary to enable City to comply with the provisions of any such overriding federal or state laws and regulations, provided that (i) Landowner does not waive its right to challenge or contest the validity of any such purportedly overriding federal, state, or City law or regulation; and (ii) upon the discovery of any such overriding federal, state, or City law or regulation that prevents or precludes compliance with any provision of this Agreement, City or Landowner shall provide to the other Party a written notice identifying the federal, state, or City law or regulation, together with a copy of the law or regulation and a brief written statement of the conflict(s) between that law or regulation and the provisions of this Agreement. Promptly thereafter City and Landowner shall meet and confer in good faith in a reasonable attempt to determine whether a modification or suspension of this Agreement, in whole or in part, is necessary to comply with such overriding federal, state, or City law or regulation. In such negotiations, City and Landowner agree to preserve the terms of this Agreement and the rights of Landowner as derived from this Agreement to the maximum feasible extent while resolving the conflict. City agrees to cooperate with Landowner at no cost to City in resolving the conflict in a manner which minimizes any financial impact of the conflict upon Landowner. City also agrees to process in a prompt manner Landowner's proposed changes to the Project and any of the Development Regulations as may be necessary to comply with such overriding federal, state, or City law or regulation; provided, however, that the approval of such changes by City shall be subject to the discretion of City, consistent with this Agreement. 4.3.6 Public Health and Safety. Any City ordinance, resolution, rule, regulation, program, or official policy that is necessary to protect persons on the Property or in the immediate vicinity from conditions dangerous to their health or safety, as reasonably determined by City, shall apply to the Property, even though the application of the ordinance, resolution, rule regulation, program, or official policy would result in the impairment of Landowner's vested rights under this Agreement. 4.3.7 Uniform Building Standards. Existing and future building and building - related standards set forth in the uniform codes adopted and amended by City from time to time, including building, plumbing, mechanical, electrical, housing, swimming pool, and fire codes, and any modifications and amendments thereof shall all apply to the Project and the Property to the same extent that the same would apply in the absence of this Agreement. 4.3.8 Public Works hnprovements. To the extent Landowner constructs or installs any public improvements, works, or facilities, the City standards in effect for such public improvements, works, or facilities at the time of City's issuance of a permit, license, or other authorization for construction or installation of same shall apply. 4.3.9 No Guarantee or Reservation of Utility Capacity. Notwithstanding any other provision set forth in this Agreement to the contrary, nothing in this Agreement is intended or shall be interpreted to require City to guarantee or reserve to or for the benefit of Landowner or the Property any utility capacity, service, or facilities that may be needed to serve the Project, whether domestic or reclaimed water service, sanitary sewer transmission or wastewater treatment capacity, downstream drainage capacity, or otherwise, and City shall have the right to limit or restrict Development of the Project if and to the extent that City reasonably determines 12/13/2012 0 14 rm that inadequate utility capacity exists to adequately serve the Project at the time Development is scheduled to commence. Notwithstanding the foregoing, City covenants to provide utility services to the Project on a non - discriminatory basis (i.e., on the same terns and conditions that City undertakes to provide such services to other similarly situated new developments in the City of Newport Beach as and when service connections are provided and service commences). 4.4 Tentative Subdivision Mans City agrees that Landowner may file and process new and existing vesting tentative maps for the Property consistent with California Government Code sections 66498.1- 66498.9 and City of Newport Beach Municipal Code chapter 19.20. Pursuant to the applicable provision of the California Subdivision Map Act (California Government Code section 66452.6(a)), the life of any tentative subdivision map approved for the Property, whether designated a "vesting tentative map" or otherwise, shall be extended for the Term of this Agreement. 4.5 Light Industrial Land Uses Light industrial land uses will cease on the Property as of March 12, 2027. 5. Amendment or Cancellation of Agreement Other than modifications of this Agreement under Section 8.3 of this Agreement, this Agreement may be amended or canceled in whole or in part only by mutual written and executed consent of the Parties in compliance with California Government Code section 65868 and City of Newport Beach Municipal Code section 15.45.060 or by unilateral termination by City in the event of an uncured default of Landowner. 5.1 Extension. Landowner may request up to, and upon receipt of a written request from Landowner, City shall grant two (2) five (5) year extensions that extend the Term of this Agreement for a total of ten (10) additional years provided that Landowner has submitted its written request to extend this Development Agreement and the following has occurred: (1) For the first five (5) year extension, building permits for the two hundred fiftieth (250th) units have been issued; and (2) For the second five (5) year extension, receipt of building permits for five hundredth (500th) units have been issued. 6. Enforcement. Unless this Agreement is amended, canceled, modified, or suspended as authorized herein or pursuant to California Government Code section 65869.5, this Agreement shall be enforceable by either Party despite any change in any applicable general or specific plan, zoning, subdivision, or building regulation or other applicable ordinance or regulation adopted by City (including by City's electorate) that purports to apply to any or all of the Property. 12/13/2012 Q 15 1RI 7. Annual Review of Landowner's Compliance With Agreement. 7.1 General. City shall review this Agreement once during every twelve (12) month period following the Effective Date for compliance with the terms of this Agreement as provided in Government Code section 65865.1. Landowner (including any successor to the owner executing this Agreement on or before the Agreement Date) shall pay City a reasonable fee in an amount City may reasonably establish from time to time to cover the actual and necessary costs for the annual review. City's failure to timely provide or conduct an annual review shall not constitute a Default hereunder by City. 7.2 Landowner Obligation to Demonstrate Good Faith Compliance. During each annual review by City, Landowner is required to demonstrate good faith compliance with the terms of the Agreement. Landowner agrees to furnish such evidence of good faith compliance as City, in the reasonable exercise of its discretion, may require, thirty (30) days prior to each anniversary of the Effective Date during the Term. 7.3 Procedure. The City Council of City shall conduct a duly noticed hearing and shall determine, on the basis of substantial evidence, whether or not Landowner has, for the period under review, complied with the terms of this Agreement. If the City Council finds that Landowner has so complied, the annual review shall be concluded. If the City Council finds, on the basis of substantial evidence, that Landowner has not so complied, written notice shall be sent to Landowner by first class mail of the City Council's finding of non - compliance, and Landowner shall be given at least ten (10) days to cure any noncompliance that relates to the payment of money and thirty (30) days to cure any other type of noncompliance. If a cure not relating to the payment of money cannot be completed within thirty (30) days for reasons which are beyond the control of Landowner, Landowner must commence the cure within such thirty (30) days and diligently pursue such cure to completion. If Landowner fails to cure such noncompliance within the time(s) set forth above, such failure shall be considered to be a Default and City shall be entitled to exercise the remedies set forth in Article 8 below. 7.4 Annual Review a Non - Exclusive Means for Determining and Requiring Cure of Landowner's Default. The annual review procedures set forth in this Article 7 shall not be the exclusive means for City to identify a Default by Landowner or limit City's rights or remedies for any such Default. 8. Events of Default. 8.1 General Provisions. In the event of any material default, breach, or violation of the terms of this Agreement ( "Default "), the Party alleging a Default shall have the right to deliver a written notice (each, a "Notice of Default ") to the defaulting Party. The Notice of Default shall specify the nature of the 12/13/2012 0 16 122 alleged Default and a reasonable manner and sufficient period of time (twenty (20) days if the Default relates to the failure to timely make a monetary payment due hereunder and not less than thirty (30) days in the event of non - monetary Defaults) in which the Default must be cured (the "Cure Period "). During the Cure Period, the Party charged shall not be considered in Default for the purposes of termination of this Agreement or institution of legal proceedings. If the alleged Default is cured within the Cure Period, then the Default thereafter shall be deemed not to exist. If a non - monetary Default cannot be cured during the Cure Period with the exercise of commercially reasonable diligence, the defaulting Party must promptly commence to cure as quickly as possible, and in no event later than thirty (30) days after it receives the Notice of Default, and thereafter diligently pursue said cure to completion. 8.2 Default by Landowner. If Landowner is alleged to have committed Default and it disputes the claimed Default, it may make a written request for an appeal hearing before the City Council within ten (10) days of receiving the Notice of Default, and a public hearing shall be scheduled at the next available City Council meeting to consider Landowner's appeal of the Notice of Default. Failure to appeal a Notice of Default to the City Council within the ten (10) day period shall waive any right to a hearing on the claimed Default. If Landowner's appeal of the Notice of Default is timely and in good faith but after a public hearing of Landowner's appeal the City Council concludes that Landowner is in Default as alleged in the Notice of Default, the accrual date for commencement of the thirty (30) day Cure Period provided in Section 8.1 shall be extended until the City Council's denial of Landowner's appeal is communicated to Landowner. 8.3 City's Option to Terminate Agreement. In the event of an alleged Landowner Default, City may not terminate this Agreement without first delivering a written Notice of Default and providing Landowner with the opportunity to cure the Default within the Cure Period, as provided in Section 8.1, and complying with Section 8.2 if Landowner timely appeals any Notice of Default with respect to a non - monetary Default. A termination of this Agreement by City shall be valid only if good cause exists and is supported by evidence presented to the City Council at or in connection with a duly noticed public hearing to establish the existence of a Default. The validity of any termination may be judicially challenged by Landowner. Any such judicial challenge must be brought within ninety (90) calendar days of service on Landowner, by first class mail, postage prepaid, of written notice of termination by City or a written notice of City's determination of an appeal of the Notice of Default as provided in Section 8.2. 8.4 Default by City. If Landowner alleges a City Default and alleges that the City has not cured the Default within the Cure Period, Landowner may pursue any equitable remedy available to it under this Agreement, including, without limitation, an action for a writ of mandamus, injunctive relief, or specific performance of City's obligations set forth in this Agreement. Upon a City Default, any resulting delays in Landowner's performance hereunder shall neither be a Landowner Default nor constitute grounds for termination or cancellation of this Agreement by City and shall, at Landowner's option (and provided Landowner delivers written notice to City within thirty (30) 12/13/2012 Q 17 183 days of the commencement of the alleged City Default), extend the Term for a period equal to the length of the delay. 8.5 Waiver. Failure or delay by either Party in delivering a Notice of Default shall not waive that Party's right to deliver a future Notice of Default of the same or any other Default. 8.6 Specific Performance Remedy. Due to the size, nature, and scope of the Project, it will not be practical or possible to restore the Property to its pre- existing condition once implementation of this Agreement has begun. After such implementation, both Landowner and City may be foreclosed from other choices they may have had to plan for the development of the Property, to utilize the Property or provide for other benefits and alternatives. Landowner and City have invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of this Agreement. It is not possible to determine the sum of money which would adequately compensate Landowner or City for such efforts. For the above reasons, City and Landowner agree that damages would not be an adequate remedy if either City or Landowner fails to carry out its obligations under this Agreement. Therefore, specific performance of this Agreement is necessary to compensate Landowner if City fails to carry out its obligations under this Agreement or to compensate City if Landowner falls to carry out its obligations under this Agreement. 8.7 Monetary Damages. The Parties agree that monetary damages shall not be an available remedy for either Party for a Default hereunder by the other Party; provided, however, that (i) nothing in this Section 8.7 is intended or shall be interpreted to limit or restrict City's right to recover the Public Benefit Fees due from Landowner as set forth herein; and (ii) nothing in this Section 8.7 is intended or shall be interpreted to limit or restrict Owner's indemnity obligations set forth in Article 10 or the right of the prevailing Party in any Action to recover its litigation expenses, as set forth in Section 8.10. 8.8 Additional City Remedy for Landowner's Default. In the event of any Default by Landowner, in addition to any other remedies which may be available to City, whether legal or equitable, City shall be entitled to receive and retain any Development Exactions applicable to the Project or the Property, including any fees, grants, dedications, or improvements to public property which it may have received prior to Landowner's Default without recourse from Landowner or its successors or assigns. 8.9 No Personal Liability of City Officials, Employees, or Agents. No City official, employee, or agent shall have any personal liability hereunder for a Default by City of any of its obligations set forth in this Agreement. 12/13/2012 Q 18 r 8.10 Recovery of Legal Expenses by Prevailing Party in Any Action. In any judicial proceeding, arbitration, or mediation (collectively, an "Action ") between the Parties that seeks to enforce the provisions of this Agreement or arises out of this Agreement, the prevailing Party shall recover all of its actual and reasonable costs and expenses, regardless of whether they would be recoverable under California Code of Civil Procedure section 1033.5 or California Civil Code section 1717 in the absence of this Agreement. These costs and expenses include expert witness fees, attorneys' fees, and costs of investigation and preparation before initiation of the Action. The right to recover these costs and expenses shall accrue upon initiation of the Action, regardless of whether the Action is prosecuted to a final judgment or decision. 9. Force Majeure. Neither Parry shall be deemed to be in Default where failure or delay in performance of any of its obligations under this Agreement is caused, through no fault of the Parry whose performance is prevented or delayed, by floods, earthquakes, other acts of God, fires, wars, riots or similar hostilities, strikes or other labor difficulties, state or federal regulations, or court actions. Except as specified above, nonperformance shall not be excused because of the act or omission of a third person. In no event shall the occurrence of an event of force majeure operate to extend the Term of this Agreement. In addition, in no event shall the time for performance of a monetary obligation, including without limitation Landowner's obligation to pay Public Benefit Fees, be extended pursuant to this Section. 10. Indemnity Obligations of Landowner. 10.1 Indemnity Arising From Acts or Omissions of Landowner. Except to the extent caused by the intentional misconduct or negligent acts, errors or omissions of City or one or more of City's officials, employees, agents, attorneys, and contractors (collectively, the "City's Affiliated Parties ") , Landowner shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and against all suits, claims, liabilities, losses, damages, penalties, obligations, and expenses (including but not limited to reasonable attorneys' fees and costs) (collectively, a "Claim ") that may arise, directly or indirectly, from the acts, omissions, or operations of Landowner or Landowner's agents, contractors, subcontractors, agents, or employees in the course of Development of the Project or any other activities of Landowner relating to the Property or pursuant to this Agreement. City shall have the right to select and retain counsel to defend any Claim filed against City and /or any of City's Affiliated Parties, and Landowner shall pay the reasonable cost for defense of any Claim. The indemnity provisions in this Section 10.1 shall commence on the Agreement Date, regardless of whether the Effective Date occurs, and shall survive the Termination Date. 10.2 Third Party Litigation. In addition to its indemnity obligations set forth in Section 10.1, Landowner shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and against any Claim against City or City's Affiliated Parties seeking to attack, set aside, void, or annul the approval of this Agreement, the Adopting Ordinance, any of the Development Regulations for the Project (including without limitation any actions taken pursuant to CEQA with respect 12/13/2012 Q 19 125 thereto), any Subsequent Development Approval, or the approval of any permit granted pursuant to this Agreement. Said indemnity obligation shall include payment of reasonable attorney's fees, expert witness fees, and court costs. City shall promptly notify Landowner of any such Claim and City shall cooperate with Landowner in the defense of such Claim. If City fails to promptly notify Landowner of such Claim, Landowner shall not be responsible to indemnify, defend, and hold City harmless from such Claim until Landowner is so notified and if City fails to cooperate in the defense of a Claim Landowner shall not be responsible to defend, indemnify, and hold harmless City during the period that City so fails to cooperate or for any losses attributable thereto. City shall be entitled to retain separate counsel to represent City against the Claim and the City's defense costs for its separate counsel shall be included in Landowner's indemnity obligation, provided that such counsel shall reasonably cooperate with Landowner in an effort to minimize the total litigation expenses incurred by Landowner. In the event either City or Landowner recovers any attorney's fees, expert witness fees, costs, interest, or other amounts from the party or parties asserting the Claim, Landowner shall be entitled to retain the same (provided it has fully performed its indemnity obligations hereunder). The indemnity provisions in this Section 10.2 shall commence on the Agreement Date, regardless of whether the Effective Date occurs, and shall survive the Termination Date. 10.3 Environmental Indemnity. In addition to its indemnity obligations set forth in Section 10.1, from and after the Agreement Date Landowner shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and against any and all Claims for personal injury or death, property damage, economic loss, statutory penalties or fines, and damages of any kind or nature whatsoever, including without limitation reasonable attorney's fees, expert witness fees, and costs, based upon or arising from any of the following: (i) the actual or alleged presence of any Hazardous Substance on or under any of the Property in violation of any applicable Environmental Law; (ii) the actual or alleged migration of any Hazardous Substance from the Property through the soils or groundwater to a location or locations off of the Property; and (iii) the storage, handling, transport, or disposal of any Hazardous Substance on, to, or from the Property and any other area disturbed, graded, or developed by Landowner in connection with Landowner's Development of the Project. The foregoing indemnity obligations shall not apply to any Hazardous Substance placed or stored on a separate legal lot within the Property after the Lot Termination Date for said lot, as provided in Section 2.4 of this Agreement. The indemnity provisions in this Section 10.3 shall commence on the Agreement Date, regardless of whether the Effective Date occurs, and shall survive the Termination Date. 11. Assignment. Landowner shall have the right to sell, transfer, or assign (hereinafter, collectively, a "Transfer ") Landowner's fee title to the Property, in whole or in part, to a Permitted Transferee(which successor, as of the effective date of the Transfer, shall become the "Landowner" under this Agreement) at any time from the Agreement Date until the Termination Date; provided, however, that no such Transfer shall violate the provisions of the Subdivision Map Act (Government Code Section 66410 et seq.) or City's local subdivision ordinance and any such transfer shall include the assignment and assumption of Landowner's rights, duties, and obligations set forth in or arising under this Agreement as to the Property or the portion thereof 12/13/2012 0 20 i i so Transferred and shall be made in strict compliance with the following conditions precedent: (i) no transfer or assignment of any of Landowner's rights or interest under this Agreement shall be made unless made together with the Transfer of all or a part of the Property; and (ii) prior to the effective date of any proposed Transfer, Landowner (as transferor) shall notify City, in writing, of such proposed Transfer and deliver to City a written assignment and assumption, executed in recordable form by the transferring and successor Landowner and in a form subject to the reasonable approval of the City Attorney of City (or designee), pursuant to which the transferring Landowner assigns to the successor Landowner and the successor Landowner assumes from the transferring Landowner all of the rights and obligations of the transferring Landowner with respect to the Property or portion thereof to be so Transferred, including in the case of a partial Transfer the obligation to perform such obligations that must be performed outside of the Property so Transferred that are a condition precedent to the successor Landowner's right to develop the portion of the Property so Transferred. Any Permitted Transferee shall have all of the same rights, benefits, duties, obligations, and liabilities of Landowner under this Agreement with respect to the portion of the Property sold, transferred, and assigned to such Permitted Transferee; provided, however, that in the event of a Transfer of less than all of the Property no such Permitted Transferee shall have the right to enter into an amendment of this Agreement that jeopardizes or impairs the rights or increases the obligations of the Landowner with respect to the balance of the Property. Notwithstanding any Transfer, the transferring Landowner shall continue to be jointly and severally liable to City, together with the successor Landowner, to perform all of the transferred obligations set forth in or arising under this Agreement unless there is full satisfaction of all of the following conditions, in which event the transferring Landowner shall be automatically released from any and all obligations with respect to the portion of the Property so Transferred: (i) the transferring Landowner no longer has a legal or equitable interest in the portion of the Property so Transferred other than as a beneficiary under a deed of trust; (ii) the transferring Landowner is not then in Default under this Agreement and no condition exists that with the passage of time or the giving of notice, or both, would constitute a Default hereunder; (iii) the transferring Landowner has provided City with the notice and the fully executed written and recordable assignment and assumption agreement required as set forth in the first paragraph of this Section 11; and (iv) the successor Landowner either (A) provides City with substitute security equivalent to any security previously provided by the transferring Landowner to City to secure performance of the successor Landowner's obligations hereunder with respect to the Property or the portion of the Property so Transferred or (B) if the transferred obligation in question is not a secured obligation, the successor Landowner either provides security reasonably satisfactory to City or otherwise demonstrates to City's reasonable satisfaction that the successor Landowner has the financial resources or commitments available to perform the transferred obligation at the time and in the manner required under this Agreement and the Development Regulations for the Project. 12, Mortgagee Rights. 12.1 Encumbrances on Property. The Parties agree that this Agreement shall not prevent or limit Landowner in any manner from encumbering the Property, any part of the Property, or any improvements on the Property 12/13/2012 Q 21 187 with any Mortgage securing financing with respect to the construction, development, use, or operation of the Project. 12.2 Mortgagee Protection. This Agreement shall be superior and senior to the lien of any Mortgage. Nevertheless, no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value. Any acquisition or acceptance of title or any right or interest in the Property or part of the Property by a Mortgagee (whether due to foreclosure, trustee's sale, deed in lieu of foreclosure, lease termination, or otherwise) shall be subject to all of the terms and conditions of this Agreement. Any Mortgagee who takes title to the Property or any part of the Property shall be entitled to the benefits arising under this Agreement. 12.3 Mortgagee Not Obligated. Notwithstanding the provisions of this Section 12.3, a Mortgagee will not have any obligation or duty under the terms of this Agreement to perform the obligations of Landowner or other affirmative covenants of Landowner, or to guarantee this performance except that: (i) the Mortgagee shall have no right to develop the Project under the Development Regulations without fully complying with the terms of this Agreement; and (ii) to the extent that any covenant to be performed by Landowner is a condition to the performance of a covenant by City, that performance shall continue to be a condition precedent to City's performance. 12.4 Notice of Default to Mortgagee: Right of Mortgagee to Cure. Each Mortgagee shall, upon written request to City, be entitled to receive written notice from City o£ (i) the results of the periodic review of compliance specified in Article 7 of this Agreement, and (ii) any default by Landowner of its obligations set forth in this Agreement. Each Mortgagee shall have a further right, but not an obligation, to cure the Default within thirty (30) days after receiving a Notice of Default with respect to a monetary Default and within sixty (60) days after receiving a Notice of Default with respect to a non - monetary Default. If the Mortgagee can only remedy or cure a non - monetary Default by obtaining possession of the Property, then the Mortgagee shall have the right to seek to obtain possession with diligence and continuity through a receiver or otherwise, and to remedy or cure the non - monetary Default within sixty (60) days after obtaining possession and, except in case of emergency or to protect the public health or safety, City may not exercise any of its judicial remedies set forth in this Agreement to terminate or substantially alter the rights of the Mortgagee until expiration of the sixty (60) -day period. In the case of a non - monetary Default that cannot with diligence be remedied or cured within sixty (60) days, the Mortgagee shall have additional time as is reasonably necessary to remedy or cure the Default, provided the Mortgagee promptly commences to cure the non - monetary Default within sixty (60) days and diligently prosecutes the cure to completion. 13. Miscellaneous Terms. 13.1 Notices. 12/13/2012 Q 22 m Any notice or demand that shall be required or permitted by law or any provision of this Agreement shall be in writing. If the notice or demand will be served upon a Party, it either shall be personally delivered to the Party; deposited in the United States mail, certified, return receipt requested, and postage prepaid; or delivered by a reliable courier service that provides a receipt showing date and time of delivery with courier charges prepaid. The notice or demand shall be addressed as follows: TO CITY: City of Newport Beach 3300 Newport Boulevard Post Office Box 1768 With a copy to: Q177►_\&I76 .]� Rym With a copy to: Newport Beach, California 92663 -3884 Attn: City Manager City Attorney City of Newport Beach 3300 Newport Boulevard Post Office Box 1768 Newport Beach, California 92663 -3884 Uptown Newport, LP c/o The Shopoff Group, L.P 2 Park Plaza, Suite 700 Irvine, CA 92614 Attn: William A. Shopoff Jackson DeMarco Tidus Peckenpaugh 2030 Main Street, 12th Floor Irvine, CA 92614 Attn: Gregory P. Powers, Esq. Either Party may change the address stated in this Section 13.1 by delivering notice to the other Party in the manner provided in this Section 13. 1, and thereafter notices to such Party shall be addressed and submitted to the new address. Notices delivered in accordance with this Agreement shall be deemed to be delivered upon the earlier of: (i) the date received or (iii) three business days after deposit in the mail as provided above. 13.2 Project as Private Undertaking_ The Development of the Project is a private undertaking. Neither Party is acting as the agent of the other in any respect, and each Party is an independent contracting entity with respect to the terms, covenants, and conditions set forth in this Agreement. This Agreement forms no partnership, joint venture, or other association of any kind. The only relationship between the Parties is that of a government entity regulating the Development of private property by the owner of the property. 12/13/2012 Q 23 13.3 Cooperation. Each Party shall cooperate with and provide reasonable assistance to the other Party to the extent consistent with and necessary to implement this Agreement. Upon the request of a Party at any time, the other Party shall promptly execute, with acknowledgement or affidavit if reasonably required, and file or record the required instruments and writings and take any actions as may be reasonably necessary to implement this Agreement or to evidence or consummate the transactions contemplated by this Agreement. 13.4 Estoppel Certificates. At any time, either Party may deliver written notice to the other Party requesting that that Party certify in writing that, to the best of its knowledge: (i) this Agreement is in full force and effect and is binding on the Party; (ii) this Agreement has not been amended or modified either orally or in writing or, if this Agreement has been amended, the Party providing the certification shall identify the amendments or modifications; and (iii) the requesting Party is not in Default in the performance of its obligations under this Agreement and no event or situation has occurred that with the passage of time or the giving of Notice or both would constitute a Default or, if such is not the case, then the other Party shall describe the nature and amount of the actual or prospective Default. The Party requested to furnish an estoppel certificate shall execute and return the certificate within thirty (30) days following receipt. 13.5 Rules of Construction. The singular includes the plural; the masculine and neuter include the feminine; "shall" is mandatory; and "may" is permissive. 13.6 Time Is of the Essence. Time is of the essence regarding each provision of this Agreement as to which time is an element. 13.7 Waiver. The failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, and failure by a Party to exercise its rights upon a Default by the other Party, shall not constitute a waiver of that Party's right to demand strict compliance by the other Party in the future. 13.8 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be identical and may be introduced in evidence or used for any other purpose without any other counterpart, but all of which shall together constitute one and the same agreement. 12/13/2013 Q 24 ;19L-) 13.9 Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements and understandings, both written and oral, between the Parties with respect to the subject matter addressed in this Agreement except for the Affordable Housing Implementation Plan (No. AH2O12 -001). 13.10 Severability. The Parties intend that each and every obligation of the Parties is interdependent and interrelated with the other, and if any provision of this Agreement or the application of the provision to any Party or circumstances shall be held invalid or unenforceable to any extent, it is the intention of the Parties that the remainder of this Agreement or the application of the provision to persons or circumstances shall be rendered invalid or unenforceable. The Parties intend that neither Party shall receive any of the benefits of the Agreement without the full performance by such Party of all of its obligations provided for under this Agreement. Without limiting the generality of the foregoing, the Parties intend that Landowner shall not receive any of the benefits of this Agreement if any of Landowner's obligations are rendered void or unenforceable as the result of any third party litigation, and City shall be free to exercise its legislative discretion to amend or repeal the Development Regulations applicable to the Property and Landowner shall cooperate as required, despite this Agreement, should third party litigation result in the nonperformance of Landowner's obligations under this Agreement. The provisions of this Section 13.10 shall apply regardless of whether the Effective Date occurs and after the Termination Date. 13.11 Construction. This Agreement has been drafted after extensive negotiation and revision. Both City and Landowner are sophisticated parties who were represented by independent counsel throughout the negotiations or City and Landowner had the opportunity to be so represented and voluntarily chose to not be so represented. City and Landowner each agree and acknowledge that the terms of this Agreement are fair and reasonable, taking into account their respective purposes, terms, and conditions. This Agreement shall therefore be construed as a whole consistent with its fair meaning, and no principle or presumption of contract construction or interpretation shall be used to construe the whole or any part of this Agreement in favor of or against either Party. 13.12 Successors and Assigns; Constructive Notice and Acceptance. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the Parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to Development of the Property: (i) is for the benefit of and is a burden upon every portion of the Property; (ii) runs with the Property and each portion thereof, and (iii) is binding upon each Party and each successor in interest during its ownership of the Property or any portion thereof. Every person or entity who now or later owns or acquires any right, title, or interest in any part of the Project or the Property is and shall be conclusively deemed to have consented and agreed to every provision of this Agreement. This Section 13.12 applies regardless of whether the instrument by 12/13/2012 0 25 ?91 which such person or entity acquires the interest refers to or acknowledges this Agreement and regardless of whether such person or entity has expressly entered into an assignment and assumption agreement as provided for in Section 11. 13.13 No Third Party Beneficiaries. The only Parties to this Agreement are City and Landowner. This Agreement does not involve any third party beneficiaries, and it is not intended and shall not be construed to benefit or be enforceable by any other person or entity. 13.14 Applicable Law and Venue. This Agreement shall be construed and enforced consistent with the internal laws of the State of California, without regard to conflicts of law principles. Any action at law or in equity arising under this Agreement or brought by any Party for the purpose of enforcing, construing, or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Orange, State of California, or the United States District Court for the Central District of California. The Parties waive all provisions of law providing for the removal or change of venue to any other court. 13.15 Section Headines. All section headings and subheadings are inserted for convenience only and shall not affect construction or interpretation of this Agreement. 13.16 Incorporation of Recitals and Exhibits. All of the Recitals are incorporated into this Agreement by this reference. Exhibits A and B are attached to this Agreement and incorporated by this reference as follows: EXHIBIT DESCRIPTION DESIGNATION A Legal Description of Property B Depiction of the Property 13.17 Recordation. The City Clerk of City shall record this Agreement and any amendment, modification, or cancellation of this Agreement in the Office of the County Recorder of the County of Orange within the period required by California Government Code section 65868.5 and City of Newport Beach Municipal Code section 15.45.090. The date of recordation of this Agreement shall not modify or amend the Effective Date or the Termination Date. 12/13/2012 Q 26 1192 12/13/2012 Q [SIGNATURE PAGE FOLLOWS] 27 1J° 3 ATTEST: City Clerk a fivml1"i1welm Aaron Harp, City Attorney 12/13/2012 Q SIGNATURE PAGE TO DEVELOPMENT AGREEMENT "LANDOWNER" UPTOWN NEWPORT LP, a Delaware limited partnership By: G &I VI NEWPORT CORP., a Delaware corporation, its General Partner By: _ Name: Its: "CITY" CITY OF NEWPORT BEACH Its: Mayor 194 STATE OF CALIFORNIA COUNTY OF ORANGE On before me, the undersigned, a Notary Public in and for said State, personally appeared and , who proved to me on the basis of satisfactory evidence to be the and whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities and that by their signature on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and official seal. Notary Public in and for said County and State STATE OF CALIFORNIA COUNTY OF ORANGE On , before me, the undersigned, a Notary Public in and for said State, personally appeared and , who proved to me on the basis of satisfactory evidence to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities and that by their signature on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and official seal. Notary Public in and for said County and State 12/13/2012 v2 -29- : 95 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY [TO BE INSERTED] 12/13/2012 v2 i EXHIBIT B DEPICTION OF PROPERTY [TO BE INSERTED] 12/13/2012 v2 197 TABLE OF CONTENTS Page 1. Definitions ........................................................................................... ..............................3 2. General Provisions .............................................................................. ..............................7 2.1 Plan Consistency, Zoning Implementation ............................. ..............................7 2.2 Binding Effect of Agreement .................................................. ..............................7 2.3 Landowner Representations and Warranties Regarding Ownership of the Property and Related Matters Pertaining to this Agreement .. ..............................7 2.4 Term ........................................................................................ ..............................7 3. Public Benefits .................................................................................... ..............................8 3.1 Public Benefit Fee ................................................................... ..............................8 3.2 Other Public Benefits .............................................................. ..............................9 4. Development of Project ..................................................................... .............................11 4.1 Applicable Regulations; Landowner's Vested Rights and City's Reservation of Discretion With Respect to Subsequent Development Approvals............................................................................... .............................11 4.2 No Conflicting Enactments .................................................... .............................12 4.3 Reservations of Authority ...................................................... .............................13 4.4 Tentative Subdivision Maps .................................................. .............................15 5. Amendment or Cancellation of Agreement ....................................... .............................15 6. Enforcement ....................................................................................... .............................16 7. Annual Review of Landowner's Compliance With Agreement ........ .............................16 7.1 General ................................................................................... .............................16 7.2 Landowner Obligation to Demonstrate Good Faith Compliance .......................16 7.3 Procedure ............................................................................... .............................16 7.4 Annual Review a Non - Exclusive Means for Determining and Requiring Cure of Landowner's Default ................................................ .............................17 8. Events of Default ............................................................................... .............................17 8.1 General Provisions ................................................................. .............................17 8.2 Default by Landowner ........................................................... .............................17 8.3 City's Option to Terminate Agreement ................................. .............................17 8.4 Default by City ....................................................................... .............................18 8.5 Waiver .................................................................................... .............................18 8.6 Specific Performance Remedy ............................................... .............................18 8.7 Monetary Damages ................................................................ .............................18 8.8 Additional City Remedy for Landowner's Default ............... .............................19 8.9 No Personal Liability of City Officials„ Employees, or Agents ........................19 8.10 Recovery of Legal Expenses by Prevailing Party in Any Action .......................19 9. Force Majeure .................................................................................... .............................19 12/13/2012 v2 4 Paee 10. Indemnity Obligations of Landowner ................................................ .............................19 10.1 ................................................................................................ .............................19 10.2 Third Party Litigation ............................................................ .............................20 11. Assignment ........................................................................................ .............................21 12. Mortgagee Rights ............................................................................... .............................22 12.1 Encumbrances on Property .................................................... .............................22 12.2 Mortgagee Protection ............................................................. .............................22 12.3 Mortgagee Not Obligated ...................................................... .............................22 12.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure ............................22 13. Miscellaneous Terms ......................................................................... .............................23 13.1 Notices ................................................................................... .............................23 13.2 Project as Private Undertaking ............................................... .............................23 13.3 Cooperation ............................................................................ .............................24 13.4 Estoppel Certificates .............................................................. .............................24 13.5 Rules of Construction ............................................................ .............................24 13.6 Time Is of the Essence ........................................................... .............................24 13.7 Waiver .................................................................................... .............................24 13.8 Counterparts ........................................................................... .............................24 13.9 Entire Agreement ................................................................... .............................25 13.10 Severability ............................................................................ .............................25 13.11 Construction ........................................................................... .............................25 13.12 Successors and Assigns; Constructive Notice and Acceptance ..........................25 13.13 No Third Party Beneficiaries ................................................. .............................26 13.14 Applicable Law and Venue .................................................... .............................26 13.15 Section Headings ................................................................... .............................26 13.16 Incorporation of Recitals and Exhibits .................................. .............................26 13.17 Recordation ............................................................................ .............................26 12/13/2012 v2 -ii- 199 200 Attachment No. PC 3 Commissioner Tucker comments on Planned Community Documents 201 O zza 3 Q� O O N I"F o �- N 0 rD m 0 R� � L O 'Nr a rD :3 Q � d C rD Q rD N N N (D < (D fD O Q" �n O rD 3 �3 V W f� ma ou Ma O O Z t � �p m = m 0 v A� Z 9�H z 0 c w O N O N a I 3 m c m z_ p 202 '1 k V-1 :1 M l , 1lmtt wi l. d,�. ai o1 �! 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S �• N o° p° v 3 d c' a to s m v. F a o d to a s ° L1 n n m ° v, m -° n d 3 n �. ?. ^. ^° o< n O a d !D A C 'd6 w C d C t� S 7' `G j N d° o J 3d >> rj- =1c =v mdo mdNTSm sa - F N d ^ ° 1°NT a° s ao. a ° ° o 3 0 fx c a O- ' c p Q s v o 3 ° a p 3 o "m3 to 0 S a `n H to N == vmi tQ3 N N m N a a y 3 W 0 0� d d ~r, ZE m O_ ? to °_'. W °_'. O ^ 5 ,m„ m t0 m m A to tL] vmi .Oe t0 d D 7 °� O d ° d m° d °- w: to w o o v d o, a ,.� v `° to °: D M ^ C °- o �. ,nn rho 0. to " D m O w m to to m n n O �. mo n 0 -. t^ t^ O a � to j .e O p l0= l0 °t N j m n O 0 j N N O d O In �' n pt In N d N O C Cil to N O n to p J 3 C N n w Zn- m d A n N p vd-i V to to 0 ry n n m n N tT n O\ t0' d v d a N O ri to 3 I 10 m O to 3 C1 c S. m 7 m 0 Q m m N V o d 3 n 0 3 9 O 7 m 7 N R In z z D m m 244 Attachment No. PC 4 Commissioner Tucker comments on AHIP 245 UPTOWN NEWPORT AFFORDABLE HOUSING IMPLEMENTATION PLAN November 29, 2012 Uptown Newport AHIP (Draft 11129112) Page 1 Contents I. Introduction ............................................................................ ..............................3 II. Project Descript ion ................................................................. ..............................3 III. Affordable Housing Obligation ............................................... ..............................4 IV. Methods to meet Affordability Requirements .......................... ..............................5 V. Definit ions .............................................................................. ..............................5 VI. Assurance of the Development of Affordable Housing ........... ..............................8 VII. Phasing of the Affordable Housing Production ....................... ..............................8 VIII. Affordable Housing Agreement .............................................. ..............................9 IX. Amendments of the AHIP ...................................................... ..............................9 X. Successors in Interest .......................... ............................... ............................109 XI. Right to Assign ..................................... ............................... ............................109 Uptown Newport AHIP (Draft 11129112) Page 2 247 L Introduction Uptown Newport consists of 25 acres of developed land located in the City of Newport Beach on the north side of Jamboree Road at the intersection of Fairchild Road. The property was originally developed as part of the Koll Center, and has been used for manufacturing telecommunications equipment and computer chips since the 1970's. The property currently includes two industrial buildings that are leased to multiple tenants including TowerJazz, who manufactures computer chips onsite. The property is currently accessed via two entries on Jamboree Road, a drive access via Birch, and a drive access via Von Kerman Avenue. The City's General Plan allows for infill development and redevelopment of the Airport Business Area including up to 2,200 residential units. In September of 2010, the City approved the Koll - Conexant Integrated Conceptual Development Plan ([CDP), which provides a framework for residential development on both the Koll and Conexant properties within the Airport Business Area. The ICDP allocated a maximum of 1,244 residential units and up to 11,500 square feet of retail to be developed on the Uptown Newport (formerly Conexant) property, and up to 260 residential units to be developed on the Koll property. IL Project Description The Uptown Newport Planned Community Development Plan (PA2011 -134) project will include redevelopment of the 25 -acre property into a high- density mixed use residential project. Up to 1,244 residential units, 11,500 square feet of retail, and 2 acres of park space are planned as part of the project. The project is anticipated to be developed in two primary phases. Phase 1 will include demolition of the existing single -story office building at 4311 Jamboree, and development of the westerly portion of the property, including the frontage along Jamboree Road. Phase 1 will include development of up to 680 residential units and up to 11,500 square feet of retail space, and is projected to commence in 2013. Phase 2 will include demolition of the existing TowerJazz fabrication building, and development of approximately 564 residential units on the easterly portion of the property. The number of residential units planned to be developed is based upon replacement units allocated to the site based on conversion of existing office and industrial uses to residential uses, additive units allocated pursuant to the General Plan, and density bonus units allowed pursuant to Government Code Section 65915 -65918 ( "State Density Bonus Law ") and City of Newport Beach Municipal Code Chapter 20.32 (the "Density Bonus Code "). On the Uptown Newport site, up to 632 units would replace the existing industrial and office uses which are to be demolished, 290 units are additive for a total of 922 units ( "Base Units "). Up to 322 additional units can be developed as density bonus units pursuant to the State Bonus Density law and the Density Bonus Code. Uptown Newport AHIP (Draft 11129112) Page 3 242 Replacement Units 632 Additive Units 290 Subtotal — Base Units 922 Density Bonus Units @ 35% 322 Total Units 1,244 The State Density Bonus Law and the City's Density Bonus Code provide for an increase in the number of units of up to thirty-five percent (35 %) above the maximum number of units allowed by the General Plan provided the project constructs a minimum number of affordable units depending upon what income category is served. At the maximum density bonus of 35 %, the Project could accommodate up to 322 additional units above the 922 Base Units for a total of 1,244 total units. This AHIP is intended to implement affordable housing requirements for the Uptown Newport project pursuant to the State Bonus Density Law, Title 19 Chapter 19.54 of the Newport Beach Municipal Code ( the "Inclusionary Code'), and the Density Bonus Code. III, Affordable Housing Obligation Subdivision projects that result in a net increase of residential units have a requirement to provide affordable housing pursuant to the City's inclusionary housing requirements that are set forth in chapter 19.54 of the Municipal Code as well as the Density Bonus Code set forth in chapter 20.32 of the Municipal Code (combined, the "Affordability Requirements" or "Affordable Housing Requirements "). The Owner seeks to achieve the maximum 35% density bonus, and will meet the Affordable Housing Requirements by the construction of affordable housing as follows: • By providing a minimum of eleven percent (11 %) of the Base Units (102 units) for Very-Low Income households for rent, or • By providing a minimum of twenty percent (20 %) of the Base Units (185 units) for Low - Income households for rent, or • By providing a minimum of forty percent (40 %) of the Base Units (369 units) for Moderate - Income households for ownership, or • By providing a combination of the above. In the event a combination of the above housing types is constructed, a Very-Low Income unit shall be deemed to be the equivalent of 3.6 Moderate Income units or 1.8 Low - Income units. A Low - Income unit shall be the equivalent of 2 Moderate - Income units. For example, if 30 Very-Low Income units are constructed, either 131 Low - Income or 261 Moderate Income units would be required to complete the affordability requirements. If 89 Low - Income units are constructed, 191 Moderate - Income units are required. For this conversion the required number of units shall be rounded up to the nearest whole number. Uptown Newport AHIP (Draft 11129112) Page 4 2-" In the event that the Project utilizes a density bonus of less than 35 %, then the Affordability Requirements would be reduced pro -rata with the reduction of market rate units through an amendment to this AHIP. /V. Methods to meet Affordability Requirements The Owner shall meet its Affordable Housing Requirements by developing the affordable units on site. Pursuant to section 20.32.070 of the City Municipal Code, affordable units shall be dispersed throughout the Planned Community unless clustering the of affordable units in one or more sections of the Planned Community is approved by the Community Development Director. V. Definitions The City's Affordability Requirements and Affordable Housing Requirements set out certain definitions and descriptions to assist in the implementation of the requirements, many of which are indicated below. These definitions and descriptions will be utilized in the interpretation of the requirements under this AHIP: A. Affordable Housing Agreement (AHA). Section 20.32.100 of the Density Bonus Code requires that an applicant that seeks a density bonus shall enter into an Affordable Housing Agreement ( "AHA ") with the City. Section 19.54.020(A) of the Inclusionary Code states that the AHA shall provide legal restrictions by which the affordable units shall be restricted to ensure that the units remains affordable to very low -, low -, or moderate- income households, as applicable. With respect to rental units, rent restrictions shall be in the form of a regulatory agreement recorded against the applicable property. With respect to owner - occupied units, resale controls shall be in the form of resale restrictions, deeds of trust, and /or other similar documents recorded against the applicable property. B. Affordable Housing Cost. Pursuant to State of California Health & Safety Code Section 50052.5, affordable housing costs for any owner - occupied for -sale affordable units shall be as follows: a. The affordable housing costs for very low- income households shall not exceed thirty (30) percent of fifty (50) percent of area median income for Orange County adjusted for household size appropriate for the unit. b. For low- income households the affordable housing costs shall not exceed thirty (30) percent of seventy (70) percent of area median income for Orange County adjusted for household size appropriate for the unit. For those low- income households with incomes above seventy (70) percent of area median income the maximum affordable housing cost may be increased to thirty (30) percent of the income of the household. c. For moderate - income households the affordable housing costs shall not be less than twenty-eight (28) percent of the gross income of the household nor exceed thirty -five (35) percent of one hundred ten (110) percent of Orange County area median income adjusted for household size appropriate for the unit. Furthermore, for those moderate - income Uptown Newport AHIP (Draft 11129112) Page 5 250 households with incomes above one hundred ten (110) percent of area median income the affordable housing costs may be increased to thirty- five (35) percent of the gross income of the household. d. Pursuant to sections 19.54.020 (C) and (D) of the City's Municipal Code "Adjusted for household size appropriate for the unit" shall mean a household size based upon two (2) persons per bedroom except for efficiency units where the household size shall be one (1) person. C. Affordable Rental Price. — Municipal Code section 19.54.020(D) defines an affordable rental price as an annual rent that does not exceed thirty (30) percent of the maximum income level for very low -, low -, and moderate - income households, as adjusted for household size. In determining the maximum household income for a given affordable unit, it shall be based upon each bedroom being occupied by two persons, except for efficiency units (one person). D. Affordable Unit. Municipal Code section 19.54.020 (E) defines an Affordable Unit as an ownership or rental- housing unit, including senior housing, affordable to households with very low -, low -, and moderate - incomes as defined herein. E. Low - Income. Municipal Code section 19.54.020 (G) defines low- income as an income between fifty (50) percent and eighty (80) percent of the Orange County median income, adjusted for actual household size, as determined by the California Department of Housing and Community Development ( "HCD "). Within this AHIP "low- income" and "lower- income" shall have the same meaning. F. Moderate - income. Municipal Code section 19.54.020 (H) defines moderate - income as an income between eighty (80) percent and one hundred twenty (120) percent of the Orange County median Income, adjusted for actual household size, as determined by the HCD. G. Very low- income. Municipal Code section 19.54.020 (I) defines very low - income to mean income fifty (50) percent or less of the Orange County median income, adjusted for actual household size, as determined by the HCD. H. Annual Adjustments. Orange County Area Median Incomes utilized for setting the Affordable Housing Price, Affordable Housing Costs, and Affordable Rental Price shall be those published annually by HCD. I. Permissible Residency. Whenever an occupancy restriction identifies a particular household category for occupancy, households with less income may also occupy that unit. So, for example, if a unit has a Moderate - Income restriction, Low - Income and Very -Low Income households may occupy that unit. Similarly, if a unit has a Low - Income restriction, Very Low - Income households may occupy that unit. J. Rental Income Limits Established. The permissible rental rates for the affordable units shall not exceed the Affordable Rental Price described earlier in this AHIP. Uptown Newport AHIP (Draft 11129112) Page 6 251 K. Affordable Housing Costs Established. The permissible Affordable Housing Costs for the affordable units shall not exceed the Affordable Housing Costs described earlier in this AHIP. L. Term of Affordability Restrictions. a. The affordable rental units provided through the implementation of this AHIP shall be legally restricted to occupancy by, and affordable to, households meeting the income requirements designated herein for a minimum duration of thirty (30) years from the date of the certificate of occupancy for the affordable units. b. Any affordable owner - occupied units provided through the implementation of this AHIP will be restricted to occupancy by, and affordable to, moderate income households. The term of the restrictions will run until the earlier of (i) the termination of the affordability restrictions in accordance with the equity sharing provisions described in section c(i) below or (ii) thirty (30) years from the date of the initial Certificate of Occupancy. c. The affordability restrictions will be documented by the recording of the following documents against the affected units: In the case of owner - occupied for -sale units a Regulatory Agreement, Restrictive Covenant, or equivalent will be recorded against each affordable unit upon the sale to the initial occupant. The new qualified owner will also sign a promissory note with the City as beneficiary in the amount of the City's initial subsidy, which shall be as defined in section 20.32.090 B 2 (a) of the Density Bonus Code. The promissory note will be secured by a trust deed, which will be recorded against the unit and subordinated to conventional financing secured by the buyer, which will be in first position on title. The affordable units shall be subject to the City's equity sharing requirements which are described in section 20.32.090 B of the City's Density Bonus Code. ii. In the case where the restricted units are rental units, a Regulatory Agreement or equivalent will be recorded against the apartment project assuring the continued affordability of the restricted units for a minimum of 30 years. The Regulatory Agreement will be subordinate to any conventional mortgage or bond financing which has a first trust deed position against the apartment project. M. Units Applicable against RHNA Requirements. The City and Owner agree that any affordable units produced through the implementation of this AHIP may be used by the City to meet its Regional Housing Needs Assessments ( "RHNA") specified by the Southern California Association of Governments ( "SCAG "). Uptown Newport AHIP (Draft 11129112) Page 7 252 VI. VII. N. Orange County Area Median Income. Annually HCD publishes area median incomes ( "AMI ") for each county in California. HCD revised and updated its 2012 income limits on February 1, 2012. The 2012 income limits for Orange County are as follows: Orange County Median Income - 2012 Household Size 1 2 3 4 5 Income Category: Extremely Low Income $20,250 $23,150 $26,050 $28,900 $31,250 Very Low Income $33,750 $38,550 $43,350 $48,150 $52,050 Lower Income $53,950 $61,650 $69,350 $77,050 $83,250 Median Income $59,700 $68,250 $76,750 $85,300 $92,100 Moderate Income $71,650 $81,900 $92,100 $102,350 $110,550 Source: Department of Housing 8 Community Development, revised 211112 Assurance of the Development of Affordable Housing. 1. If the Owner has not commenced the development of affordable units in accordance with the phasing plan described in section VIII below then the City may withhold Certificates of Occupancy for the market rate units under construction until the Owner or successor in interest has commenced or completed the development of the affordable units. 2. For purposes of this section "commence the development" shall mean (i) commence or complete the construction of the affordable units, or (ii) issuance of building permits for or completion of the construction of the affordable units. ;z Question /Comment: Will the affordable units be in a separate building or units so it is possible that buildings that are all "for sale" product may have no affordable units. Phasing of the Affordable Housing Production. 1. The affordable housing required under this AHIP may be produced incrementally along with the market -rate units or may be produced in advance of the market rate units. If the units are produced incrementally then the development of the affordable units shall proceed in accordance with the schedule indicated herein. 2. Prior to the issuance of a final certificate of occupancy for fifty percent (50 %) of the market rate units, the Owner shall commence construction of or complete a minimum of one -third of the affordable units (i.e. 1/3' of Uptown Newport AHIP (Draft 11129112) Page 8 253 185 low- income units equals 61 units). [Question /Comment: The way I read this, no affordable units would be required to be commenced or completed until a final CO is sought for the 530" market rate unit. Am I missing something? Assuming the low- income category is used, the total market rate units are 1.244- 185 = 1.059. Fifty percent of that total is 529.5. 1 would think that the requirement should be broken down by protect Phase. 3. Prior to the issuance of building permits for Phase 2, the Owner shall have completed construction on a pro -rata amount of the affordable units within phase 1 [Question /Comment: Does this necessarily work considering that Phase 2 may not happen until 2027 ?. Does this mean that completion of affordable units for Phase 1 doesn't have to occur until Potentially 2027 or later ?]. Therefore, for example, if Phase 1 is 680 units out of a total project size of 1,244 units, or fifty -five percent (55 %), then the owner shall have completed construction on a minimum of 55% of the affordable units or the equivalent of 101 low- income affordable units. 4. Prior to the issuance of a certificate of occupancy for seventy -five percent (75 %) of the market rate units, the Owner shall have commenced construction of or completed a minimum of two- thirds of the affordable units (i.e. 213rds of 185 low- income units equals 123 units). Same comment as 2 above.] 5. After the issuance of the certificate of occupancy for seventy -five percent (75 %) of the market rate units, the Owner and City shall reconcile the number of market rate units and affordable units to determine the final number of affordable units that will be required. 6. Prior to the issuance of the certificate of occupancy for the final market rate units, the Owner shall have commenced construction of or completed all of the remaining affordable units. [Comment: Seems a little late to complete the requirement. This should happen before the very last unit.] VIII. Affordable Housing Agreement. An AHA referencing the terms of this AHIP shall be executed between the City and Owner for the complete Project. A short form or memorandum of the AHA shallaray also be executed and recorded prior that before a parcel can be deeded out, the affordable housing requirement for that parcel will be included in the deed.] IX. Amendments of theAHIP. This AHIP may be amended by mutual agreement of the parties which will require City Council approval pursuant to section 19.54.060 of the Municipal Code. Uptown Newport AHIP (Draft 11129112) Page 9 g1�z,. X. Successors in Interest The obligations and benefits applying to the Owner under this AHIP shall also apply to any successors in interest to the Owner. XI. Right to Assign. Owner shall have the right to assign the AHAis -AM+R, including all benefits, covenants, duties, and obligations contained herein, upon the City's prior approval, which shall not be unreasonably withheld or delayed. Owner shall notify the City in writing of the assignment at least thirty (30) days prior to completion of the assignment. Owner's notice of assignment to the City shall include the name of, and contact information for the assignee. Upon completion of the assignment, the assignee shall assume and the performance - -of all duties and obligations set forth in the AH^'T^R„H o excepting only those duties and obligations expressly retained by Owner, if any, as part of the assignment. rNote: This should be re- worked to be consistent with comments above. Also, can the AHA be assigned only as to part of the proiect - - that is on a parcel by parcel basis ?l Uptown Newport AHIP (Draft 11129112) Page 10 2155 250 Attachment No. PC 5 257 UPTOWN NEWPORT AFFORDABLE HOUSING IMPLEMENTATION PLAN "December 14, 2012 Uptown Newport AHIP (Draft 414'� 1211412012) Page 1 252 Contents I. Introduction ............................................................................ ..............................3 II. Project Description ................................................................. ..............................3 III. Affordable Housing Obligation ............................................... ..............................4 IV. Methods to meet Affordability Requirements .......................... ..............................5 V. Definitions .............................................................................. ..............................5 VI. Assurance of the Development of Affordable Housing ........... ..............................8 VII. Phasing of the Affordable Housing Production ....................... ..............................8 VIII. Affordable Housing Agreement .............................................. ..............................9 IX. Amendments of the AHIP ...................................................... ..............................9 X. Successors in Interest ........................................................... ..............................9 XI. Right to Assign ...................................................................... ..............................9 Uptown Newport AHIP (Draft 41,9911 21211412012) Page 2 2,59 L Introduction Uptown Newport consists of 25 acres of developed land located in the City of Newport Beach on the north side of Jamboree Road at the intersection of Fairchild Road. The property was originally developed as part of the Koll Center, and has been used for manufacturing telecommunications equipment and computer chips since the 1970's. The property currently includes two industrial buildings that are leased to multiple tenants including TowerJazz, who manufactures computer chips onsite. The property is currently accessed via two entries on Jamboree Road, a drive access via Birch, and a drive access via Von Karman Avenue. The City's General Plan allows for infill development and redevelopment of the Airport Business Area including up to 2,200 residential units. In September of 2010, the City approved the Koll - Conexant Integrated Conceptual Development Plan (ICDP), which provides a framework for residential development on both the Koll and Conexant properties within the Airport Business Area. The ICDP allocated a maximum of 1,244 residential units and up to 11,500 square feet of retail to be developed on the Uptown Newport (formerly Conexant) property, and up to 260 residential units to be developed on the Koll property. ❑. Project Description The Uptown Newport Planned Community Development Plan (PA2011 -134) project will include redevelopment of the 25 -acre property into a high- density mixed use residential project. Up to 1,244 residential units, 11,500 square feet of retail, and 2 acres of park space are planned as part of the project. The project is anticipated to be developed in two primary phases. Phase 1 will include demolition of the existing single -story office building at 4311 Jamboree, and development of the westerly portion of the property, including the frontage along Jamboree Road. Phase 1 will include development of up to 680 residential units and up to 11,500 square feet of retail space, and is projected to commence in 2013. Phase 2 will include demolition of the existing TowerJazz fabrication building, and development of approximately 564 residential units on the easterly portion of the property. The number of residential units planned to be developed is based upon replacement units allocated to the site based on conversion of existing office and industrial uses to residential uses, additive units allocated pursuant to the General Plan, and density bonus units allowed pursuant to Government Code Section 65915 -65918 ( "State Density Bonus Law ") and City of Newport Beach Municipal Code Chapter 20.32 (the "Density Bonus Code "). On the Uptown Newport site, up to 632 units would replace the existing industrial and office uses which are to be demolished, 290 units are additive for a total of 922 units ( "Base Units "). Up to 322 additional units can be developed as density bonus units pursuant to the State Bonus Density law and the Density Bonus Code. Uptown Newport AHIP (Draft 41,9911 21211412012) Page 3 200 Replacement Units 632 Additive Units 290 Subtotal — Base Units 922 Density Bonus Units @ 35% 322 Total Units 1,244 The State Density Bonus Law and the City's Density Bonus Code provide for an increase in the number of units of up to thirty -five percent (35 %) above the maximum number of units allowed by the General Plan provided the project constructs a minimum number of affordable units depending upon what income category is served. At the maximum density bonus of 35 %, the Project could accommodate up to 322 additional units above the 922 Base Units for a total of 1,244 total units. This AHIP is intended to implement affordable housing requirements for the Uptown Newport project pursuant to the State Bonus Density Law, Title 19 Chapter 19.54 of the Newport Beach Municipal Code ( the " Inclusionary Code "), and the Density Bonus Code. HL Affordable Housing Obligation Subdivision projects that result in a net increase of residential units have a requirement to provide affordable housing pursuant to the City's inclusionary housing requirements that are set forth in chapter 19.54 of the Municipal Code as well as the Density Bonus Code set forth in chapter 20.32 of the Municipal Code (combined, the "Affordability Requirements" or "Affordable Housing Requirements'). The Owner seeks to achieve the maximum 35% density bonus, and will meet the Affordable Housing Requirements by the construction of affordable housing as follows: • By providing a minimum of eleven percent (11%) of the Base Units (102 units) for Very -Low Income households for rent, or • By providing a minimum of twenty percent (20 %) of the Base Units (185 units) for Low- Income households for rent, or • By providing a minimum of forty percent (40 %) of the Base Units (369 units) for Moderate - Income households for ownership, or • By providing a combination of the above. In the event a combination of the above housing types is constructed, a Very-Low Income unit shall be deemed to be the equivalent of 3.6 Moderate Income units or 1.8 Low - Income units. A Low - Income unit shall be the equivalent of 2 Moderate - Income units. For example, if 30 Very-Low Income units are constructed, either 131 Low - Income or 261 Moderate Income units would be required to complete the affordability requirements. If 89 Low - Income units are constructed, 191 Moderate - Income units are required. For this conversion the required number of units shall be rounded up to the nearest whole number. Uptown Newport AHIP (Draft 41,9911 21211412012) Page 4 201 In the event that the Project utilizes a density bonus of less than 35 %, then the Affordability Requirements would be reduced pro -rata with the reduction of market rate units through an amendment to this AHIP. /V. Methods to meet Affordability Requirements The Owner shall meet its Affordable Housing Requirements by developing the affordable units on site. Pursuant to section 20.32.070 of the City Municipal Code, affordable units shall be dispersed throughout the Planned Community unless clustering the of affordable units in one or more sections of the Planned Community is approved by the Community Development Director. V. Definitions The City's Affordability Requirements and Affordable Housing Requirements set out certain definitions and descriptions to assist in the implementation of the requirements, many of which are indicated below. These definitions and descriptions will be utilized in the interpretation of the requirements under this AHIP: A. Affordable Housing Agreement (AHA). Section 20.32.100 of the Density Bonus Code requires that an applicant that seeks a density bonus shall enter into an Affordable Housing Agreement ( "AHA ") with the City. Section 19.54.020(A) of the Inclusionary Code states that the AHA shall provide legal restrictions by which the affordable units shall be restricted to ensure that the units remains affordable to very low -, low -, or moderate - income households, as applicable. With respect to rental units, rent restrictions shall be in the form of a regulatory agreement recorded against the applicable property. With respect to owner - occupied units, resale controls shall be in the form of resale restrictions, deeds of trust, and /or other similar documents recorded against the applicable property. B. Affordable Housing Cost. Pursuant to State of California Health & Safety Code Section 50052.5, affordable housing costs for any owner - occupied for -sale affordable units shall be as follows: a. The affordable housing costs for very low- income households shall not exceed thirty (30) percent of fifty (50) percent of area median income for Orange County adjusted for household size appropriate for the unit. b. For low- income households the affordable housing costs shall not exceed thirty (30) percent of seventy (70) percent of area median income for Orange County adjusted for household size appropriate for the unit. For those low- income households with incomes above seventy (70) percent of area median income the maximum affordable housing cost may be increased to thirty (30) percent of the income of the household. c. For moderate - income households the affordable housing costs shall not be less than twenty -eight (28) percent of the gross income of the household nor exceed thirty -five (35) percent of one hundred ten (110) percent of Orange County area median income adjusted for household size appropriate for the unit. Furthermore, for those moderate - income households with incomes above one hundred ten (110) percent of area Uptown Newport AHIP (Draft 41,9911 21211412012) Page 5 202 median income the affordable housing costs may be increased to thirty - five (35) percent of the gross income of the household. d. Pursuant to sections 19.54.020 (C) and (D) of the City's Municipal Code "Adjusted for household size appropriate for the unit" shall mean a household size based upon two (2) persons per bedroom except for efficiency units where the household size shall be one (1) person. C. Affordable Rental Price. — Municipal Code section 19.54.020(D) defines an affordable rental price as an annual rent that does not exceed thirty (30) percent of the maximum income level for very low -, low -, and moderate - income households, as adjusted for household size. In determining the maximum household income for a given affordable unit, it shall be based upon each bedroom being occupied by two persons, except for efficiency units (one person). D. Affordable Unit. Municipal Code section 19.54.020 (E) defines an Affordable Unit as an ownership or rental- housing unit, including senior housing, affordable to households with very low -, low -, and moderate - incomes as defined herein. E. Low - Income. Municipal Code section 19.54.020 (G) defines low- income as an income between fifty (50) percent and eighty (80) percent of the Orange County median income, adjusted for actual household size, as determined by the California Department of Housing and Community Development ( "HCD "). Within this AHIP "low- income' and "lower- income" shall have the same meaning. F. Moderate - income. Municipal Code section 19.54.020 (H) defines moderate - income as an income between eighty (80) percent and one hundred twenty (120) percent of the Orange County median Income, adjusted for actual household size, as determined by the HCD. G. Very low- income. Municipal Code section 19.54.020 (1) defines very low - income to mean income fifty (50) percent or less of the Orange County median income, adjusted for actual household size, as determined by the HCD. H. Annual Adjustments. Orange County Area Median Incomes utilized for setting the Affordable Housing Price, Affordable Housing Costs, and Affordable Rental Price shall be those Dublished annuallv by HCD. Permissible Residency. Whenever an occupancy restriction identifies a particular household category for occupancy, households with less income may also occupy that unit. So, for example, if a unit has a Moderate - Income restriction, Low - Income and Very -Low Income households may occupy that unit. Similarly, if a unit has a Low- Income restriction, Very Low- Income households may occupy that unit. J. Rental Income Limits Established. The permissible rental rates for the affordable units shall not exceed the Affordable Rental Price described earlier in this AHIP. Uptown Newport AHIP (Draft 41,9911 21211412012) Page 6 203 K. Affordable Housing Costs Established. The permissible Affordable Housing Costs for the affordable units shall not exceed the Affordable Housing Costs described earlier in this AHIP. L. Term of Affordability Restrictions. a. The affordable rental units provided through the implementation of this AHIP shall be legally restricted to occupancy by, and affordable to, households meeting the income requirements designated herein for a minimum duration of thirty (30) years from the date of the certificate of occupancy for the affordable units. b. Any affordable owner - occupied units provided through the implementation of this AHIP will be restricted to occupancy by, and affordable to, moderate income households. The term of the restrictions will run until the earlier of (i) the termination of the affordability restrictions in accordance with the equity sharing provisions described in section c(i) below or (ii) thirty (30) years from the date of the initial Certificate of Occupancy. c. The affordability restrictions will be documented by the recording of the following documents against the affected units: L In the case of owner - occupied for -sale units a Regulatory Agreement, Restrictive Covenant, or equivalent will be recorded against each affordable unit upon the sale to the initial occupant. The new qualified owner will also sign a promissory note with the City as beneficiary in the amount of the City's initial subsidy, which shall be as defined in section 20.32.090 B 2 (a) of the Density Bonus Code. The promissory note will be secured by a trust deed, which will be recorded against the unit and subordinated to conventional financing secured by the buyer, which will be in first position on title. The affordable units shall be subject to the City's equity sharing requirements which are described in section 20.32.090 B of the City's Density Bonus Code. ii. In the case where the restricted units are rental units, a Regulatory Agreement or equivalent will be recorded against the apartment project assuring the continued affordability of the restricted units for a minimum of 30 years. The Regulatory Agreement will be subordinate to any conventional mortgage or bond financing which has a first trust deed position against the apartment project. M. Units Applicable against RHNA Requirements. The City and Owner agree that any affordable units produced through the implementation of this AHIP may be used by the City to meet its Regional Housing Needs Assessments ( "RHNA ") specified by the Southern California Association of Governments ( "SCAG "). Uptown Newport AHIP (Draft 41,9911 21211412012) Page 7 204 N. Orange County Area Median Income. Annually HCD publishes area median incomes ( "AMP') for each county in California. HCD revised and updated its 2012 income limits on February 1, 2012. The 2012 income limits for Orange County are as follows: Orange County Median Income - 2012 Household Size 1 2 3 4 5 Income Category: Extremely Low Income $20,250 $23,150 $26,050 $28,900 $31,250 Very Low Income $33,750 $38,550 $43,350 $48,150 $52,050 Lower Income $53,950 $61,650 $69,350 $77,050 $83,250 Median Income $59,700 $68,250 $76,750 $85,300 $92,100 Moderate Income $71,650 $81,900 $92,100 $102,350 $110,550 Source: Department of Housing & Community Development, revised 211112 VI. Assurance of the Development of Affordable Housing, 1. If the Owner has not commenced the development of affordable units in accordance with the phasing plan described in section VIII below then the City may withhold Certificates of Occupancy for the market rate units under construction until the Owner or successor in interest has commenced or completed the development of the affordable units. 2. For purposes of this section "commence the development" shall mean (i) commence or complete the construction of the affordable units, or (ii) issuance of building permits for or completion of the construction of the affordable units. VII. Phasing of the Affordable Housing Production. 1. Affordable housing shall be constructed in each of the two proposed phases of development. Based upon the current phasing plan where 680 units are proposed for Phase 1 and 544 units are proposed for Phase 2, the minimum number of units to be constructed in Phase 1 shall be 55% and shall not exceed 60% of the total affordable housing obligation for the Uptown Newport project. The remaining affordable housing obligation shall be constructed in Phase 2. 2. Prior to the issuance of a certificate of occupancy for seventy -five (75 %) of the market rate units planned within each Phase, the Owner shall commence construction or complete the construction of a minimum of fifty percent (50 %) of the affordable units required to be constructed within each Phase. 3. Prior to the issuance of a certificate of occupancy for one hundred percent (100 %) of the market -rate units within each Phase, the Owner Uptown Newport AHIP (Draft 41,12911 21211412012) Page 8 205 shall obtain a certificate of occupancy for all affordable units required to be constructed within each Phase. M -NIP �raa� I s sa.�armnr 1. c�a: rrs�:r�re�rrsrs�:r�: n �rssr�a� raa nr rsmn -� VIII. Affordable Housing Agreement. An AHA referencing the terms of this AHIP shall be executed and recorded between the City and Owner prior to recordation of the Final Map for the project FRAMOFARGI-bim of the AHA m shall AIR.. h.... AIAPA A...d . ...ded IX. AmendmentsoftheAHIP. This AHIP may be amended by mutual agreement of the parties which will require City Council approval pursuant to section 19.54.060 of the Municipal Code. X. Successors in Interest. The obligations and benefits applying to the Owner under this AHIP shall also apply to any successors in interest to the Owner. XI. Right to Assign. Owner shall have the right to assign this AHIP, including all benefits, covenants, duties, and obligations contained herein, upon the City's prior approval, which shall not be unreasonably withheld or delayed. Owner shall Uptown Newport AHIP (Draft '"', -'I 1211412012) Page 9 200 E21 �raa� I s sa.�armnr 1. c�a: rrs�:r�re�rrsrs�:r�: n �rssr�a� raa nr rsmn -� VIII. Affordable Housing Agreement. An AHA referencing the terms of this AHIP shall be executed and recorded between the City and Owner prior to recordation of the Final Map for the project FRAMOFARGI-bim of the AHA m shall AIR.. h.... AIAPA A...d . ...ded IX. AmendmentsoftheAHIP. This AHIP may be amended by mutual agreement of the parties which will require City Council approval pursuant to section 19.54.060 of the Municipal Code. X. Successors in Interest. The obligations and benefits applying to the Owner under this AHIP shall also apply to any successors in interest to the Owner. XI. Right to Assign. Owner shall have the right to assign this AHIP, including all benefits, covenants, duties, and obligations contained herein, upon the City's prior approval, which shall not be unreasonably withheld or delayed. Owner shall Uptown Newport AHIP (Draft '"', -'I 1211412012) Page 9 200 notify the City in writing of the assignment at least thirty (30) days prior to completion of the assignment. Owner's notice of assignment to the City shall include the name of, and contact information for the assignee. Upon completion of the assignment, the assignee shall be responsible and liable for the performance of all duties and obligations set forth in this AHIP, excepting only those duties and obligations expressly retained by Owner, if any, as part of the assignment. Uptown Newport AHIP (Draft 41,9911 21211412012) Page 10 20 202 Attachment No. PC 6 Correspondence 2o9 Wednesday, December 05, 2012 �JSO By Chairman Michael Toerge 'C 4G 04o Planning Commission coo 3300 Newport Blvd. 110\ Newport Beach, CA 92653 isJ,� S Support Uptown Newport O�J�yoQ�SN`Q�T Subject: RE: 2- Minutes to Su F Dear Chairman Toerge: C ?Y DP NOV As a. member of the Building Industry Association of Orange Countv, I would like to convey my support of the Newport Uptown development project. This project will provide the much needed housing in this area of Newport Beach and will allow its residents to experience a live /work environment. A master planned mixed use project is the appropriate use for the property considering the new priorities for the City to meet the housing demand. while the previous industrial uses have occurred without issue, at this time they are becoming outdated for the area and are in great need of redevelopment. Redevelopment of this site with the proposed 1,244 residential units and associated retail will enhance residential property values and bring a new vitality to the area. I respectfully request your approval of Newport Uptown. The project directly supports City's goals for the area. It provides the many benefits the city anticipated for an urban residential lifestyle community. Thank you for your time and consideration. Sincerely, t e Card 0 Rxecutive Park Ste 200 Irvine, CA 92614 270 TAIT en,o ro rn <..wa� December 7, 2012 City of Newport Beach, Planning Commission: 4pEIVED 6y COMMUNITY DEC 10 2012 .> DEVELOPMENT vd` OP AIEWPOO 0P As a member of the Building Industry Association of Orange County, a resident of Newport Beach, and a proponent of reasonable growth, I would like to convey my support of the Newport Uptown development project. This project will have a positive impact on our city, as it provides a healthy mix of uses, brings more residents into a predominantly commercial area, attracts development and promises to bring additional tax dollars to the city due to retail sales. This project will provide the much needed housing in this area of Newport Beach and will allow its residents to experience a live /work environment. A master planned mixed use project is the appropnale use for the property considering the new priorities for the City to meet the housing demand. While the previous industrial uses have occurred without issue, at this time they are becoming outdated for the area and are in great need of redevelopment. Redevelopment of this site with the proposed 1,244 residential units and associated retail will enhance residential property values and bring a new vitality to the area. I respectfully request your approval of Newport Uptown. The project directly supports City's goals for the area. It provides the many benefits the city anticipated for an urban residential lifestyle community. Thank you for your time and co ideration. K. Richard Tait President, Tait & Associates. Inc. Resident of Newport Beach 271- ADDITIONAL MATERIALS RECEIVED I . 9 v i 11 11LIi'E 1 M STAFF PRESENTATION PA2011 -134 \V P( I ~ D _ n Previous Hearing December 6, 2012 Reviewed & took straw votes on Draft EIR & Draft Statement of Overriding Considerations Closed public hearing Continued the item to December 20, 2012 Discussion Koll Center Newport Planned Community Amendment oil Uptown Newport Planned Community (PC) • Tentative Tract Map • Affordable Housing Implementation Plan (AHIP) • Development Agreement (DA) • Project consistency with General Plan Integration and connectivity I* 1[�el raw 0 MW • is Exhibit D of Draft Resolution ■ No Comments received ■ No proposed changes r - , .. i1ar: Exhibit E of Draft Resolution t Three components Land Uses, Development Standards & Procedures Phasing Plan Design Guidelines F Comments received from Commissioner Tucker entative Tract Map Tentative Tract Map Conditions of Approval — Exhibit G of Draft Resolution Comments received from Commissioner Tucker Revised Conditions A \!11! Affordable Housing Implementation Plan Attached as Exhibit K of Draft Resolution Comments received from Commissioner Tucker - Revised AHIP DeVelc t Draft Development Agreement Attached as Exhibit L of Draft Resolution Updated to address Commissioner Tucker's comments 8 A rd * • i!T: C7 Goal LU 6.2.5 A mixed -use community that provides jobs, residential, and supporting services in close proximity, with pedestrian- oriented amenities that facilitate walking and enhance livability 23 Policies guide the achievement of this goal 6 refer to "integration" and `connectivity" of uses. I Ekirnort Arpa Pohric: Policy LU 6.15.3-7 Street and Pedestrian Grid Create a pattern of streets and pedestrian ways that breaks up large blocks, improves connections between neighborhoods and community amenities, and is scaled to the predominantly residentia character of the neighborhoods. Policy LU 6.15.3-9 Connected Streets Require dedication and improvement of new streets as shown on Figure LU23. The illustrated alignments are tentative and may change as long as the routes provide the intended connectivity... 30 Ti • MA ' w ,Arrar11 ra►e 11 ii. lb ,W D n _ LU 667_ a. Rol x- 4 Y n fa. a I-- _ I ri iz DA\ /1rAmeal ❑ Ah 7 Iu — r • rTl � III_ ,• 1 `- Y I Y ' , 1 IY 11 Saa I ROREE ROAD -01 � Phase 1 Master Site Plan Uptown Newport ` Uptown Newport LP i Summary Maul Maw2 Total Number,Oait: 6a0 561 120 h w.(.0; 143 142 US Reuiliell: 11,500 0 11,500 0n- Stmtft&,g SWk 59 N 93 Toul Am p0: 13.01 1201 25.0 0 50' 100' 1 November 30, 2012 2 u � a� r N 0 50' 100' 1 November 30, 2012 2 Reviser' �_ Grd rrrr>i/ �nununnuulnnuumi31numnm munuumlinunuuuumunlilnnnlnlmlulunuu� J Umiml �u r I� Summary N.. r0111a1- W 564 1j4 varwaealaa 1.03 1.02 2M NeMlls41: 11,500 0 11,500 OmSry hMip S4tlh 59 34 93 mu14ea1.0 13.01 12.0 25.0s ! o L - -- _ -- mom HR11 rrrrmmmrrrnn< o ' I , - - -- o r; r *� Master Site Plan Uptown Newport 0'N S1 ` Uptown Newport LP November30,2012 City has not prioritized the acquisition of planned new streets or pedestrian ways City is reliant on dedication of fee or easement for pubic use of streets and pedestrian ways through implementation of projects Uptown Newport provides public use easements consistent with General Plan and the ICDP - provides for future connections & access with Koll Koll & Adams are not parties to current application and the City is not requiring anything of them No apparent nexus to require applicant to obtain and construct new streets or sidewalks through Koll as a condition of approval Koll will be required to dedicate and improve connecting streets and sidewalks as part of their pending mixed -use development application • '10 rM. iON Modify Condition No. 15 to add: • Concurrent with the completion of corresponding vehicular and pedestrian connections on Koll Center Newport, the applicant shall construct the appropriate vehicular and pedestrian connections as necessary along the common property line. If Koll Center Newport constructs the connections in advance of either phase of the Uptown Newport Planned Community, the applicant shall construct all necessary vehicular and pedestrian connections with each phase. Construction drawings for these connections shall be subject to review and approval by the Public Works and Community Development Departments prior to construction. 17 Recommendations Conduct a public hearing; and Adopt draft Resolution recommending City Council approval of Uptown Newport including: Certification of Environmental Impact Report Approval of KCN PC amendment, Uptown Newport PC, Tentative Tract Map, Traffic Study, AHIP and DA J-8 P Schedule City Council public hearings Notice of Intent to override ALUC's determination — January 8, 2013, at new City Hall Project — February 26, 2013 (tentative) 20 1 For more information contact: Rosalinh Ung 949 -644 -3208 Rung@newportbeachca.gov www.newportbeachca.gov -tow �. The iJP REAL ESTATE INVESTMENT CAPITAL \ D K A • ADVISORS LLC PA2011 -134 DECEMBER 20, 2012 1 I 1 r J jL�jt�,t 0.1` ERE 4t, - -1ui ICI '.I 1-"c!VM 1JLIVPM, VON KARMAN ACCESS Von KarmanAccess: ❖ Non - exclusive access for ingress /egress + Planned for emergency access ❖ Multiple drive aisle access points ❖ Access for Conexant /Mindspeed parking structure ❖ Not analyzed in the EIR Not envisioned in the General Plan GpQ� • /,pQ� _ / of %; M: s¢n �a ti Ia i C T•��• - HAY •�I C� .A• -... Ps !I 3 y. Lt?I.`.•f I11.� Hutt' I ' \ � VO_N KARMAN AVE / PA C 110 (l) j ors IRAG7 0767. t � `� • 'j � t QNli t xr �- _. T i 4 -:AL _ M 1-3 � =77 EM F- k " KCU.; C�a 0 c �.t Primary Community Community Perimeter Gateway Fencing Secondary Community Tubular Steel Fence atop Gateway Retaining Wall �E Pedestrian Gateway ■ Pilasters II J - 1 ' L1 Primary Community Gateway Secondary Comm un Gateway iK-Pedestrian Gateway r Barrier Fence l�kV1f ti 4 ,y . Community Perimeter Fending ty � Tubular Steel Fence atop Retaining Wall ■ Pilasters _ ® 6. 0' 100' 200' (PAW ° HIGH -RISE ZONE HIGH -RISE ZONE MOT TO EXCEED I HIGH-R[ E iT TO EXCEED I HIGH-RISE j STRUCTURE) STRUCTURE) Legend: 'High -Rise Zone' (High- riseportions of buildings have 150'heightlimit) 55'HeightLimit 75' Height Limit HIGH -RISE ZONE MOTTOEXCEE1 _ 16N -F: -E STRUCT!' ':f P. N HIGH- RISEZONE ° OTT EXCEED2 HIGH-RISE (PAW ° HIGH -RISE ZONE HIGH -RISE ZONE MOT TO EXCEED I HIGH-R[ E iT TO EXCEED I HIGH-RISE j STRUCTURE) STRUCTURE) Legend: 'High -Rise Zone' (High- riseportions of buildings have 150'heightlimit) 55'HeightLimit 75' Height Limit HIGH -RISE ZONE MOTTOEXCEE1 _ 16N -F: -E STRUCT!' ':f Dr., (PARK) 1w HIGH-RISE ZONE MOTTO EXCEED 3 HIGH-RI (PARK) HIGH -RISE ZONE HIGH -RISE ZONE OTTO EXCEED 1 XIGN -RISE (NOTTO EXCEED 1 HIGX -PISF STRUCTURE) STRUCTURE) Le n - "High -Rise Zone (High -rise portions of buildings have a 150' height limit) — 55' Height Limit 75' Height Limit HIGH -RISE ZONE (NOTTO EXCEED 2 HIGH -RISE STRUCTURES) n ioo HIGH-RISE ZONE OTTO EXCEED 2 HIGH-RISE STRUCTURES) (PARK) II I l ) I I (PARK) 0 HIGH-RISEZONE HIGH RISE ZONE )TTO EXCEED I HIGH-RISE (MOTTO E %GEED I HIGH-RISE STRUCTURE) STRUCTURE) "High -Rise Zone" (High -rise portions have a 1 SO' height ® 55'HeightLimit Q 75'HeightLimit Kne"1 HIGH-RISE ZONE )TTO EXCEED HIGH-RISE STRUCTURES) IPARN) HIGH -RISE ZONE MOTTO EXCEED I HIGH-RI STRUCTURE) )w HIGH -RISE ZONE - DTTO EXCEED 2 HIGH -RISE STRUCTURES) e (PARK) HIGH -RISE ZONE ( NOTTO EXCEED 1 HIGH-RISE STRUCTURE) Legend: "High -Rise Zone" (High -rise portions of buildings have a 150' height limit) Q 55'Height Limit 75'Height Limit I'Fad HIGH -RISE ZONE (MOTTO EXCEED 2 HIGH-RISE STRUCTURES) ;j y 4 J_ j Q' JAMBOREE ROAD Neighborhood street terminating at the edge of the property allows for potential vehicular onnection with the future re- development of Koll Center Newport Intenm cul- de-sac in >hase 1 to be converted open space m Phase i •Chokers "and c m"walks provided as traffic calming device On- street pam"Parkirsg to serve asvrstor parking Gatberingspeceswith enhanced features such as benchesand fountains will break up the paseo and reduce the sale of the buildings Pas" connection to Jamboree Road provides for passive recreation, iestrian connectivity, and sgnifiant massing break Pas" connection to Koll Center N- _.port Vehicular access to residentialparking structures lobe located away from the Spine SW and parks Pedestrian wale Activate groundNo" building frontage in this zone with resident servir uses such as leasing offic lobbies, fitness centers, a mad roomswith special emphasis adjacent to roundabout Increased perkwry and building setback to enhance the public realm and improve the connection between the neighborhood parks Provide pedestrian connections to adjoining buildings/parcels from paseo DESIGN KN J DTI TIDELINES •'• Site Planning •'• Architectural Design •'• Site Development & Infrastructure •'• Landscape Design ❖ Signage 11 '� 1 1 y:r- ���f smrtc; up REAL ESTATE INVESTMENT CAPITAL D K A • ADVISORS LLC F 5.7 HARDSCAPE PLAN 5.7.1 Walls and Fencing The project will have one fence design used throughout all parcel areas. Several pedestrian connections to surrounding properties are incorporated intothe Master Site Plan. Unlocked access gates or unobstructed openings to adjoining properties are encouraged but not mandatory at the pedestrian connections. Community fencing is to be tubular steel with a painted metal finish. Wall materials are to be made of Concrete Masonry Units Figure 5 -21 Overall -Walls and Fencing with a split face or enhanced finish to match the adjacent architecture in Uptown Newport Village with a tubular steel community fence atop. Retaining wall materials are to be poured in place concrete or Concrete Masonry Units with a split face or finish to match the adjacent architecture in Uptown Newport Village. Wall and fence locations are shown diagrammatically in Figure 5 -21. Q Q Item 2a: Additional Materials Received Planning Commission December 20, 2012 5. LANDSCAPE DESIGN GUIDELINES I i � Tubular Steel Fence atop Retaining Wall �M •� � Mir:' �w �. s .r. Community Perimeter Fencing Primary Community Gateway r— Community Perimeter Fencing Secondary Community — Tubular Steel Fence atop Gateway Retaining Wall * Pedestrian Gateway Barrier Fence Pilasters 0' 100' 200' Uptown Newport Planned Community Development Plan 12 -19 -12 63 Legend: 0 "High -Rise Zone" (High -rise portions of b1 have 150'heightlimit, o 100, 0 55'HeightLimit FO) 75' Height Limit HIGH -RISE ZONE t MOTTO EXCEED 2 HIGH -RISE STRUCTURES) o D -1 :1 It (PARK) (PARK) ZED 0 / (NOTTO EIRXCEEDE2 HIC -RISE � STRUCTURES) lit HIGH-RISE ZONE / HIGH -RISE ZONE / (NOTTO EXCEED 1 HIGH-RISE MOTTO EXCEED 1 HIGH -RISE STRUCTURE) STRUCTURE) — -= _= _------ _== c�IZ��u�� Z Building Height Diagram - Option A Uptown Newport Uptown Newport LP 0' 100' 200' (PARK) HIGH -RISE ZONE Ij MOTTO EXCEED 1 HIGH -RISE 1 ' STRUCTURE) 100' HIGH-RISE ZONE MOTTO EXCEED 2 HIGH -RISE STRUCTURES) (PARK) HIGH-RISE ZONE MOTTO EXCEED 1 HIGH -RISE STRUCTURE) ____ - --------- RCA 1 Z Building Height Diagram - Option B Uptown Newport Uptown Newport LP Legend: "High -Rise Zone" (High -rise portions of bi have 150'heightlimit 55' Height Limit 75' Height Limit ;10 HIGH-RISE ZONE (NOTTOEXCCEE 2HII) H RISE S ST o' 1 oo 2 00' 0 100, 0 i HIGH -RISE ZONE (NOTTO EXCEED 2 HIGH -RISE STRUCTURES) (PARK) II 11, ) G//11/1/A (PARK) 17 HIGH-RISE ZONE 1p HIGH-RISE ZONE - -- /(NOT TO EXCEED 1 HIGH-RISE / (NOTTO EXCEED HIGH -RISE STRUCTURE) / STRUCTURE) ---------- Z Building Height Diagram - Option C Uptown Newport Uptown Newport LP Legend: "High -Rise Zone' (High -rise portions of b( have 150'heigh t limit, 55' Height Limit 75'HeightLimit HIGH-RISE ZONE (NOTTO EXCEED 2 HIGH-RISE STRUCTURES) o' 100• 200• 3.4 Architectural Features Key locations within the Uptown Newport PC have been specifically identified for the implementation of special architectural massing features. These features are to be located at the project entries, at portions of buildings that become focal points based on thejuxtaposition and patterns of project roadways, in key building frontages adjacent to park space and other locations that are visually prominent within the community (see Figure 3 -14). These features will include the introduction of features such as tower elements, enhanced fenestration, restrictions in building height and building step -backs by upper Floors. Guidelines 3. ARCHITECTURAL GUIDELINES In addition to the key locations, tower elements may be introduced to serve primarily as architectural features to enhance the overall design and composition of project buildings. Towers may be used to incorporate exit stairs and elevator over - rides, or may be integrated into the functional design of residential units. JAMBOREE ROAD •.e - eo: eo -oo: •e -eo. -eo. Figure 3 -14 Architectural Enhancement Areas Architectural ] Enhancement Zone A.hlteci..I Feature Y C•1U t% Uptown Newport Planned Community Development Plan 12 -20-12 35 Neighborhood street terminating at the edge of the property allows for potential vehicular connection with the future re- development of Koll Center Newport Interim cul -de -sac in Phase 1 to be converted to open space in Phase 2 "Chokers ^and crosswalks provided as a traffic calming device On- street parallel parking to serve as visitor parking Gathering spaces with enhanced features such as benches and fountains will break up the paseo and reduce the scale of the buildings Paseo connection to Jamboree Road provides for passive recreation, pedestrian connectivity, and significant massing break Figure 2 -11: Central Neighborhood Street (BUILDING PAD/ ENVELOPE) (BUILDING PAD/ ENVELOPE) 'SPINE STREET M 1 (BUILDING PAD/ ENVELOPE) L7 N O O O x O W x 0 w Design Guidelines 2. SITE PLANNING GUIDELINES AND STANDARDS (BUILDING PAD/ ENVELOPE) Paseo connection to Koll Center Newport Vehicular access to residential parking structures to be located away from the Spine Street and parks Pedestrian scale parkway and building setback Activate ground floor building frontage in this `• zone with resident serving uses such as leasing offices, - lobbies, fitness centers, and mail rooms with special _ emphasis adjacent to roundabout Increased parkway and building setback yam/ EC'W- r to enhance the public ,. ' •�•+.t,[�t,!( realm and improve the J connection between the 2 neighborhood parks (BUILDING PAD/ ENVELOPE) Provide pedestrian connections to adjoining buildings /parcels from paseo Uptown Newport Planned Community Development Plan 12 -20-12 17 tem 2a: Additional Materials Received Planning Commission December 20, 2012 Recommended language to be added to Section 3.14 of the Design Guidelines (HW 234). Buildings adjacent to exterior property lines shall feature "four- sided" architecture whereby continuity of design character is extended to front, side and rear elevations.